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HomeMy WebLinkAbout1990-1360.Campbell, Dance et al.93-04-15 ,~ ~ '- '~ -, r (' ONTARIO EMPLOYES OE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO 111111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WE"ST SUITE 2100 TORONTO ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPfE (416) 326-13915 1360/90, 2737/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EXPLODES COLLECTIVE BARGAINING ACT Before 'I'D GRIBVDCB BBTTLEMENT BOARD ~ BETWEEN OPSEU (Campbell/Dance et al) Grievor - and - The crown in Right of ontario (Ministry of Community & Social Services) Employer BEFORE: N. Dissanayake vice-Chairperson J.C. Laniel Member D Halpert Member FOR THE R. Anand UNION Counsel Scott & Aylen Barristers & Solicitors FOil THB S. Mason EMPLOYER Counsel Legal Services Branch Ministry of Community & social services HEARING August 1, 2, 1991 February 25, 26, 1992 March 2, 3, 4, 1992 April 16, 1992 ~ ( 2 DECISION The hearing of this case took a total of six days, The original panel which commenced hearing this matter consisted of the present Vice-Chairperson and Union Member and Employer Member Ms. M. Wood. After the first two days of hearing Ms. Wood became unavailable for an extended period. In the circumstances, with the consent of the parties Mr 0 Halpert replaced Ms. Wood as the Employer Member on the panel. There are 19 classification grievances before the Board filed by the following employees, 1 Faye Couch 2. Adele Dance 3. Mary Lou David 4 Shirley Ireland 5. Sharon Bums 6. Marsha Cameron 7 Barbara Campbell 8. Sharon Cullen 9. Brenda Garland 10. Janet Girwood 11 Bonnie Greene 12. Norma MacDonald 13. Anne Marshall 14 Sharon Murphy-Healey 15. Jean Reynard 16, Ruth Shirley 17 Patricia Stranberg 18. Carol Tubman 19. Charlene Whitney It Is common ground that as of the dates of their grievances all of the grlevors performed similar duties. However the grievors' position titles and classifications fell into two different categories. Four of the grlevors (Couch, Dance, David and Ireland) held positions titled "Specialized Training & Education Instructor" ("STEllnstructor") and were assigned the classification of Instructor 2. Recreation & Crafts (RCI2) The remaining grievors held positions titled ~Specialized Training & Education Program Instructor" ("STEP Instructor") and were assigned the classification of Counsellor ,,"' I ( '" 3 2, Residential Life (ltRC2") While the two groups had separate position specifications, it is agreed that the specifications are very similar in their substantive elements. Both groups of grievors claim that their respective positions are improperly classified. The union requests a "Berry order" directing that the positions be properly classified, or in the alternative, that the positions be reclassified as RC3. All of the grievors are employed at the Rideau Regional Centre in Smith Falls, Ontario, a residential facility for developmentally handicapped adults. At the relevant time there were approximately 800 residents, who ranged from the highly functional to extremely retarded. The RRC is organized Into a number of divisions including Administrative Support Services (dietary, financial, housekeeping, laundry maintenance etc.), Clinical Support Services (dental, lab, nursing, occupational therapy, physiotherapy, speech and aUdiology and x-ray etc.), Family & Community Services, Employee Services, Residential Services and Developmental EnrIchment Services. The evidence is that the RRC was under the Ministry of Health until sometime late In 1960s or early I I 1970s. At that time the Ministry of Community and Social Services took over responsibility for the centre. Under the Ministry of Health the RRC operated primarily as a medical facility providing medical care and custodial support to its residents. Starting In the 1970's the emphasis changed from the medical model to one of training residents to prepare them for Integration into the general community While earlier the residents included young children, now It only admits adults. Also the higher functioning residents were sent to group homes and other smaller community Institutes, As a result, the number of residents decreased and also the residents' average function level decreased ( 4 The Residential SelVices Division consists of a number of units, each with its own Director Each unit consisted of a number of wards. Prior to the establishment of a separate programming section, some off-ward programming was done within the units. The evidence indicates that in 1979 the RRC undertook a major restructuring of its services, As part of that, management decided to draw together aU of the employees who did programming in the various units and to form a separate programming department. Committees were formed with a mandate to prepare curriculum for training In a number of skill areas. After the findings of the committees were approved, In 1981 a new off-ward programming department was established and named the Special Training and Educational Programmes Department (STEP) This department came under its own Director Under the Director there were 3 STEP supervisors, who had responsibility for some 30 programming staff The programmers who came from the various units continued to be classified as RC2 in their positions In the STEP Department. The Board heard that in 1982, a number of employees from the Occupational Therapy Dept. Joined the STEP department as programmers and did the same duties as the programmers who came from the residential units. However at the time they did not possess the Developmental Service Worker (DSW) designation. Instead they held the designation of Occupational Therapy Assistant (OT A) In the Occupational Therapy Dept. their positions were classified as RCI2. Upon their transfer to the STEP Dept. their positions continued to be so classified. The union adduced evidence through three grievors whose positions are classified as RC2 and one whose position is classified as RCl2, However before turning to their testimony, we wish to deal with two issues on which the Board was called upon to rule during the course of the hearing. I ( ( \, 5 Reoresentatlve Grievors The union proposed to call Ms. Bonnie Greene as a witness representative of al/ grievors. The employer would not agree that she was representative. The union continued to Insist that she was and requested that the Board rule on the matter I n its oral ruling the Board adopted the following reasoning and approach. Often the Board has before it similar classification grievances filed by multiple grievors. Where the employer does not agree that the individual(s) proposed by the union are representative a serious procedural problem is created. On the one hand, merely because the parties are unable to agree upon representative witnesses. it is not practical to hear testimony from each of the grievors, who can number dozens or even hundreds In some cases. Often the grievors hold identical position titles under a common position specification, are similarly classified, and the grievances filed are similar It would be a colossal waste of the Board's limited resources to hear testimony from each grievor in these circumstances. On the other hand, it is Impossible for the Board to rule whether one grievor Is in fact representative of other grievors because the Board is unable to make that determination without knowing what duties and responsibilities are carried out by each of the grievors. In the circumstances we ruled that where a number of employees occupy common positions under a common specification, which are similarly classified and where they grieve that the classification assigned is improper, the Board will recognize a rebuttable presumption that the duties and responsibilities of the grievors are not significantly different in their essential or core elements, The union is entitled to call any grievor{s) that It claims to be representative. It is open to the employer, if It feels that the grievor(s) called by the union are not representative, to establish any sIgnificant differences, through cross-examination or through Its own evidence. It Is up to the Board to decide at the end whether Indeed the testimony of the union's witnesses was I ( - ( 6 representative, because its case will be adversely affected if the Board finds that the presumption has been rebutted by the evidence. It is our view that the above approach is fair and reasonable in the circumstances, in that it allows both parties to put forward their evidence as to representativeness, while at the same time forcing them to act reasonably and responsibly in so doing. This approach also avoids the Inefficiencies and wastage that will necessarily result from forcing the unIon to call every grievor to ~ testify merely because there is no agreement as to representativeness. Extrinsic evidence as to the meanlna of the class standArd One of the issues in dispute between the parties was the degree of supervision envisaged by the RC2 class standard where it uses the phrase .under the direction or The employer called Ms. C. Lang, a Human Resources Policy Advisor employed in the Corporate Branch of the Ministry of Community & Social Services. She testified that she commenced employment with the Ontario Government In 1975. that for the last 6-1/2 years she had been "exposed to classification issues., and that since the Court decision In Re Berrv was Issued, she had been Involved In writing class standards. Employer counsel proposed to question the witness as to her understanding of the use of phrase .under the direction on" in dealing with levels of supervision In class standards In the Ontario Public Service, Union counsel objected to this evidence being adduced. Counsel argued that Ms. Lang's testimony, which is based on her involvement with class standards in the last 6-1/2 years, Is irrelevant and unhelpful in interpreting the RC2 class standard which had been last revised way back in 1968. He submitted that In any event, the proposed evidence amounts to the adducing of a conclusion of law through the witness. The witness is being asked to Interpret the class standard. This, according to counsel is the sole responsibility of the Board, He submitted that if an employer I / "- \ 7 witness is allowed to testify about the employer's own understanding of the phrase In question the union must be allowed complete discovery, Including all relevant documentation, as to the basis of the witness testimony Employer counsel cited to us the decision In Re Lott/Jessup, 0852 and 0853/89 (Kaplan) where It is noted that an employer witness, who was Involved tn the classification of the disputed position, "gave evidence about his view of the difference between "general direction" as found In the P03 classification and "general supelVislon" found in the P02 classification" It appears from the decision that no objection was made to the adducing of this evidence. Thus there is no mention of any Issue between the parties as to the admissibility of this evidence, nor does the Board make any ruling on that. Thus. In our view, that decision does not set a precedent for the admissibility of that type of evidence. We came to the conclusion. and ruled, that the proposed evidence ought not to be received. Where a classification grievance Is filed, under section 18(2)(a) of the Crown Employees Collective Bargaining Act claiming "that his position has been improperly classified", the Board Is required under section 19(1) to "decide the matter" Where the grievance Is based on a class standards argument, In order to decide the grievance, the Board must, first ascertain what duties and responsibilities are envisaged by the class-standard in question. This necessarily would require the Board to interpret the language and phraseology used In the class standard. The second step is then to examine the evidence as to the grlevor's actual duties and responsibilities and determine whether they reasonably fit within the duties and responsibilities envisaged In the class standard. Class standards are by their very nature produced unilaterally by the employer In our view in interpreting the language and phraseology In the class standard, the Board must do so objectively by ascertaining the intent of words and phrases In the context of the whole class I ( \ 8 standard and in light of the provisions of the whole class standard series. It must also be governed by the accepted cannons of interpretation of documents, In our view, to allow the employer to lead evidence as to what It subjectively intended by the language used would be to invite self~serving testimony That would be tantamount to a delegation of the interpretation of the class standard to the employer In our view by so doing the Board will be declining its jurisdiction under section 19(1) "to decide" the matter It was for those reasons that the Board refused to hear the evidence of Ms. Lang as to her understanding of the meaning of the phrase "under the direction or in the class standard. Her evidence would not have been of any value in any event because she could not testify as to what may have been Intended by the use of the phrase In 1968 when this class series was written. We now turn to consider the evidence as to the duties of the two positions In dispute. STEP Instructors The union presented its case solely on the basis of the class standards. The STEP Instructors' position specification filed as an exhibit was agreed to be reasonably accurate. There was really no significant conflicts between the testimony of the three STEP Instructors called by the union and the evidence of the employer witnesses, Ms. Jean Reynard Joined the RCC in 1971 and obtained the Mental Retardation Certificate (MRC) which Is the equivalent to the DSW designation, in 1974 After working In a residential ward for 3 months. she was transferred to the training apartment, where she became involved In programming for a number of young residents. After one year, when the employee who was doing a music programme left, she took over that programme. Ms, Reynard already had music training in piano and clarinet. Between 1974-76 she completed a number of courses in "Education Through ~' (' ( 9 Music. She applied the knowledge she acquired to expand and improve the music programme that existed at the AAC and came up with her own "Education Through Music" programme for the residents. The programme used music as a tool to teach various other skills to the developmentally handicapped. These skills Included attentional skills, communication skills, socialization, group interaction and auditory skills, To a lesser degree she used music as a tool to teach basis academic skills such as number concepts, size concepts and colour concepts. She continued the education through music programme after the STEP Department was formed. The major difference was now her whole work day was occupied by programming duties, Residents from any unit identified by ward staff or professional staff may be referred to her programme. She assessed their individual needs and administered the programme In the manner she deemed best suited. In addition to the music programme, Ms. Reynard was responsible for the teaching of WHMIS to both the residents and the staff In addition she spent 1 or 2 days a year making presentations on her music programme to students at Algonquin College. The union's second witness was Ms. Barbara Campbell, who has been employed at the RRC since 1974 and In the STEP Dept. since Its inception in 1981 Her main responsibility was for a programme known as "The Community and the law" She testified that this programme Is Intended to assist persons who have problems respecting others rights or who may not have regard for the law She had to deal with residents prone to stealing, assaults, difficulty with peer relatfonships and residents who constantly lie. Ms. Bonnie Greene testified next. She Joined the RAC In 1972. After completing her MAC In 1974 she worked in a ward for one year and transferred to the STEP Dept. as a programmer when it was establlshed In 1981 In the STEP Oept Ms. Greene was responsible for a programme known as "Being Me" She developed this programme by revising an existing programme. This I I ( I 10 programme deals with topics such as sexuality sexual misbehaviour birth control and menopause. Using some of the concepts used in the "Being Me" programme Ms. Greene prepared a marriage process programme for two residents of RRC who wished to be married, and a programme called 'Going Places. dealing with Issues such as punctuality and attention, She further prepared a social programme for training residents the skills needed to deal with common difficulties people face at work and In the community To train the developmentally handicapped how to exercise the right to vote at elections, Ms. Greene prepared a programme on "Voting Procedures" In addition to the programming for RRC residents, Ms. Greene testified that she engaged in a significant amount of "outside consultations" outside the RRC. These consultations relate to her "Being Me" programme and mainly included training residents In group homes and some teaching at two community colleges. The evidence indicates that she spent 328 hoors on outside work in a year It is clear that Ms. Greene Is the only STEP instructor who has this degree of community involvement. Ms. Reynard spent the most time outside the RRC next to Ms. Greene, and that amounted only to one or two days a year The union also called a residential counsellor who worked In a ward, Ms. Arlene Whitmore, to testify about the duties performed on the wards. The purpose of this evidence was to contrast that work with the work performed by STEP instructors, particularly In relation to the nature of the programming and the extent of supervision. In view of the position taken by the union that residential staff act as substitute parents, while STEP Instructors are In effect teachers, we agreed to hear this evidence over the objection of the employer While her testimony assisted us to follow the union s argument, it does not directly assist us decide whether the grievors duties and responsibilities reasonably fit within the class standard. , (- ( I I 11 The employer called four witnesses. We will not review that evidence here. Suffice it to observe that in addition to addressing the issue of the retroactivity of remedy the employer's evidence attempted to establish that programming Is taught as part of the curriculum for the DSW that residential counsellors also carried out programming and also dealt with the issue of supervision of the grievors. The RC2 class standard reads: COUNSEllOR 2 (RESIDENTIAL UFE) CLASS DEFINITION. Employees In positions allocated to this class have successfully completed the prescribed Mental Retardation Certificate Course (Residential Life) and, as qualified counsellors, act as substitute parents for an assigned group of mentally retarded residents in an Ontario Hospital School or similar facility On any shift, under the direction of a supervising counsellor incumbents of positions In this class actively encourage and train the residents to develop acceptable standards of personal behaviour, cleanliness, dress, conduct and sportsmanship. These employees supervise the residents on or off the premises and participate In sports, games, hobbles and other programs related to the needs of the residents and designed to teach them the mechanics of dally life. They counsel, advise and encourage the residents in the areas of moral development, deportment and adjustments to the demands of contemporary society They may administer prescribed medication, assist in medical treatment and chart residents' behaviour and progress. These employees meet with other counsellors and other staff to discuss problem cases and methods of unit programming. They may provide advice and guidance to less experienced counsellors and may supervise counsellors-In-training and be responsible for their practicat Instruction. They may temporarily be assigned to other areas of resident therapy as required. QUALIFICATIONS 1 Successful completion of the prescribed Mental Retardation Certificate Course. 2. Demonstrated ability and desire to understand the problems of handicapped persons; the capacity to establish and maintain effective relationships with them; leadership resourcefulness; integrity; good moral character and habits; emotional maturity. good physical condition. ( ( 12 The union s case was argued solely on the basis of a class standards approach. The Issue before the Board therefore is whether or not the duties and responsibilities of the STEP Instructors, when measured against this class standard, reasonably fit within it, For the grievances to succeed, the Board must be persuaded, on a balance of probabftities, the the duties and responsibilities performed by the grievors are so substantially different than those contemplated by the class standard that the positions do not reasonably fit within the class standard. The union's argument is as follows. Primarily, it Is submitted that the grievors' positions are improperly classified as RC2 because they do not act as "substitute parents. as contemplated by the class standard. In his view substitute parenting involves the day to day care that normal parents provide to their children such as washing, bathing, brushing teeth, dressing, feeding taking to the doctors and giving medications etc. (Hereinafter referred to as "normal parenting duties.) The grievors do not do any of that, while residential counsellors In the wards do. Counsel likens the grievors to "teachers" as opposed to parents. Where children are 'identified as In need of some specialized tm/ojng, parents will refer them to persons specially tmined /n the area of need. That, according to counsel, Is the role played by the grievors. Secondly, counsel submits that the class standard envisages that the Incumbent will have an "assigned group. of residents. He submits that while ward staff have assigned residents, the grievors do not. Thirdly counsel submits that the phrase .on any shift" contemplates "shift work" The grievors do not do shift work, but work straight days. Fourthly counsel argues that the grievors do not work "under the direction of a supervising counsellor" as contemplated by the RC2 class standard He relies on the evidence that while there \ ( 13 was a supervisor on duty when the grievors were at work, they performed all of the significant aspects of their job independently without any supervision. He poInted to the lack of any evidence that the supervisors had over-ruled any decisions made by the grlevors. UnIon counsel concedes that direct care counsellors do some type of off-ward programming in the units. He also recognizes that the class standard states that "These employees participate in programs related to the needs of the residents and designed to teach hem the mechanics of daily life~ However he submits that that reference to programming must be read in light of what the class standard says about substitute parenting, In his view while the class standard may envisage a limited amount of training and programming, Le. the kind of training provided by parents to their children, It does not contemplate the quality of specialized programming done by the grievors. Nor does It envisage employees doing programming on a full time basis because that Is not done by parents In their homes. While at first blush, the union's argument based on the substitute parent theory Is attractive and appears to be logical, on a closer reading of the class standard as a whole, we cannot accept that the phrase Is limited to the normal parenting duties as suggested by counsel. The class standard expressly states that the Incumbents act as substitute parents "as qualified counsellors. Since the normal parent In not a qualified counsellor possessing the DSW designation, It Is not reasonable to conclude that when the grievors act as substitute parents they would be doing the same tasks as the normal parent, Besides, having stated that the employees, as qualitled counsellors, act as substitute parents, the standard goes on to describe the kinds of duties performed by the incumbents in that role. The class standard envisages that the incumbents do the following: - They actively encourage and train the residents to develop acceptable standards of personal behaviour, cleanliness, dress, conduct and sportsmanship. (' ( I I 14 - They supervise the residents on or off the premises. - They participate in sports, games, hobbies and other programs related to the needs of the residents and designed to teach them the mechanics of daily life. - The counsel, advise and encourage residents In the areas of moral development, deportment and adjustments to the demands of contemporary society They meet with other counsellors and other staff to discuss problem cases and methods of unit programming. There are certain other things the Incumbents may do: - They may administer prescribed medication, assist In medical treatment and chart residents' behaviour and progress. ,~" - They may provide advice and guidance to less experience -. counsellors. - They may supervise counsellors in-training and be responsible for their practical Instruction. The foregoing are all of the duties of the Incumbents of the RC2 class standard. A review of that list of duties convinces us that the focus of the positions envisaged by that standard is the training of the resident The parenting expectecl of the qualified counsellors is the training of the residents physically and mentally, and their development refatfng to personal behaviour morals, social graces etc. If the focus of the job was the bathing, brushing teeth, feeding etc., it Is unlikely that the class standard would reqUire the incumbents to hold a DSW designation. Obviously that academic qualification Is not required to be able to adequately perform those tasks, which all parents do for their children with no special qualifications, The Grievance Settlement Board has recognized that an employee can be a "substitute parent" within the meaning of the RC2 class standard' without the responsibility for those day-to- day parental duties. In Re Abroslmoff, 1923/90 (Verity) a number of grievors employed at the I ( I, 15 Southwestern Regional Centre (also a facility for developmentally handicapped residents) grieved that their positions were Improperly classified as RC2, All of the grievors worked in a day programme called "Training on the Job" It was essentially a programme designed to provide vocational training to the residents. The evidence disclosed two things. First, that the grievors did not work in a residential setting, Instead they trained the residents In an employment setting. Secondly the grlevors clearly did not perform the normal parenting tasks such as bathing, feeding, dressing etc. i I One of the issues before the Board was whether the grievors could be said to act as ~substitute parents. within the meaning of the RC2 class standard. The union argued that they did not. Although the Board found that the grievors did their training In an employment settling as opposed to a residential setting and that they did not do any of the normal parenting duties, the Board concluded that they were acting as substitute parents. At p. 17 the Board observed There Is no real dispute between the parties that the evidence establishes that all four representative grievors are primarily involved In various aspects of vocational training. In our view it must be said that the grievors do act as substitute parents in the setting of a Regional Centre and in the context of vocational programs they train residents to develop acceptable standards of personal behaviour, cleanliness, dress, conduct and sportsmanship, The Board, however, went on to uphold the grievances on a different ground. It concluded that the essence of the grievors' work was vocational training. Since the class standard had no reference whatsoever to vocational training it was held that their positions were Improperly classJfied as RC2. On the facts before us we are satisfied that in the context of the various programmes carried out by the grievors, their primary goal Is to develop In the residents the kinds of values and ~ ( ( 16 skills described in the class standard. Even in the music programme, Ms, Reynard conceded that she had no Intention of teaching music to the residents. The goal was to teach them skills such as attentional skills, communication skills and socialization by using music as a tool. In Re Abrosimoff, ~ the Board observed that the RC2 class standard Is designed to cover employees who work vin a residential setting in an Ontario Hospital School or similar facillty" and contrasted that with the setting in which the grievors worked. They worked in an employment setting in the community. in private industry, in a farm. in a laundry and a workshop. The work performed by the trainee residents was productive and was found to have va commercial aspect" The Board found this type of work setting to be outside the contemplation of the RC2 class standard. -- - The facts before us are distinguishable, Residents identified as in need of training attend at the STEP Oept. which is located within the same facility They receive that trainIng in a group. The kind of training received is not of a type outside the cfass standard. This contrasts with lob training or vocational training, which the Board in Re Abroslmoff Wmm) found to be the essence of the grievors' job but which Is not contemplated by the class standard at all. The grievors here are Involved In teaching basic life skills to the residents. That Is the entire focus of the class standard as revealed by the description of the duties therein. In our view the manner, in which the training is done by the grievors here. that is the group or class room setting. does not take them outside the contemplation of the class standard. I We next tum to the union s second and third arguments. In our view, the grievors do have "an assigned group of residents" namely those who have been emoled in their respective programmes. We also do not agree that the use of the phrase on any shift" In the standard restricts the class standard to positions required to do shift work. ) ( ( 17 Now we turn to the issue of supervision. The class standard states that the incumbents work .underthe direction of a supervising counsellor" The grlevors did have a supervisor However. the argument is essentially that she did very little actual supervision. The evidence is that the grievors are left to make their own decisions and that the supervision Is limited to the supervisor dropping In once or twice a week to find out Dhow things are going" The grlevors testified that their work stations are located some distance from the supervisor's office and that no supervisor is present In the work area when they work with the residents. In this regard It must again be remembered that the incumbents in the RC2 class standard are "qualified counsellors" Counsellors In training are covered by the RC1 class standard and are said to "work under supervision", whUe fully qualified counsellors In'the RC2 class standard work .under the direction of' In our view the latter phrase envisages a lesser degree of supervision. The fact Is that the grievors are highly qualified and highly motivated individuals. This Is demonstrated by the evidence that they have completed courses and obtained designatIons above and beyond the DSW required by the class standard and their position specification. Also, they are very experienced and had been doing their respective programmes for many years. The evidence is that the RRC was governed by a Quality of Working Life Policy which minimized supervisory intervention and gave latitude to the employees in how they did their work. Under cross examination Ms. S, Doyle. Acting STEP Director was asked If that policy meant that supervisors only intervene as needed. Her reply was, -I don't have to stand over the shoulders and watch their day to day programming. They are very competent programmers" She repeated several times that there was constant communication between the supervisor and STEP Instructors and that If there are any problems assistance Is provided. She felt that the supervisors' presence during actual programming would be a source of disruption. Therefore the extent of supervision was for the supervisor to periodically drop in to inquire how the grievors were doing and whether they were encountering any problems. If there were problems, the supervisor attended to them. If the grlevors needed any assistance a supervisor was always available. The fact that there was no supervisor over-seeing the grievors' work on an ongoing basIs ,- ( ( 18 does not, in our view, mean that they were not working "under the direction of' a supervisor The fact that the grlevors establish their own work methods and procedures to achieve the programme objectives and that they do not receive technical instruction is not inconsistent with the phrase "under the direction of, particularly considering that they perform their duties as fully qualified and experienced counsellors. The fact that their decisions have not been over.ruled by the supervisor is not an Indication that the supervisor did not have that authority The evidence was clear that she did have such authority It has been recognized by this Board that the appropriateness of a classification does not depend on the level of competency of the Incumbent. Thus In Re Gerrard, 521/81 (Jolliffe) the Board stated at p. 26: In reaching this conclusion, we are not taking into account the grievor's long experience or high qualifications for the position (he) now holds. it is well understood that what must be classified Is the position itself, the duties and responsibilities required, and not the merits of the incumbent. (emphasis in the original) \ The union witnesses agreed that if less experienced employees are hired as STEP Instructors they would require more assistance and supervision. We have already noted that Ms. Greene is unique in relation to the amount of work performed outside the RRC. While she did more community work than other STEP Instructors, she admitted that heT primary responsibility was towards residents of the RRC and that the amount of outside work undertaken depends on the availability of time. In our view, despite her outside work, her core duty is the training of the residents of RAC In the life skills described in the class standard In Re Ackert, 559/90 (Keller) the Board stated. "It is natural that persons perlorm duties beyond those specified in the class standard. a qualitative and quantitative analysis, however Is required to show whether they are sufficient to take the duties as a whole out of the Class Standard. Our conclusion is that while the grievor may, at times, perform some of the additional duties as proposed, the Incidence, frequency and Importance in relation to his other duties do not result in their being other core duties: ( ( 19 The fact that the STEP instructors may have performed some duties outside the class standard (eg. staff WHMIS training) does not take the position outside that class standard, where the core duties fit comfortably within it. Union counsel also distinguished between the quality and quantity of the programming done by the grievors, from the programming done by ward staff whose positions are also classified as RC2. However, the Board has recognized that dissimllar positions may well fit within a common classification, provided that core duties fall within it, In Re Anderson 497/85 (Roberts) at p. 6-7 the Board accepted that: an employee may be property classified even though he or she does not perform all or a majority of the duties described in a Class Standard. We accept that Class Standards must, by nature, be general in scope. and there will be significant variations in the concentrations of duties of employees who are property classified thereunder In Re Anderson, the Board found that the only duties the grievors performed was enforcement work. The class standard gave little significance to enforcement work, and was overwhelmed by technical and management duties none of which the grlevors performed. The Board found this to be a case of extreme circumstances and held that the grlevors positions were improperty classified. We do not find similar circumstances here. The Board's approach In a class standards case is described in Re Marshall, 1797/89 (Keller) as follows at pp. 6-9' The jurisprudence of the Board is replete with statements outlining the test used to determine whether a class standard is appropriate or not. Essentially they state that the core of the definition of the classification must apply to a job. What that has been Interpreted to mean is that the Board must satisfy itself that the functions which are an integral part of the class standard what makes that class standard unique and distinguishes It from other class standards are performed by the grlevors. The distinguishing feature of the RC2 class standard is the teaching by qualified counsellors, of the types of life skills and values described therein to developmentally handicapped ( f ( 20 resIdents. We are satisfied that the grievors duties and responsibilities reasonably fit within that class standard, Accordingly, the grievances of the STEP Instructors are hereby dismissed. STEI Instructors Four of the grlevors hold the position of Special Training & Education Instructor, which Is classified as Instructor 2, Recreation and Crafts (RCI2) The evidence shows that despite holding positions differently titled, all of the programming staff In the STEP department perform almost identical duties and under similar working conditions and procedures. The only reason these ~ grlevors' positions are not classified as RC2 Is because that class standard requires the DSW (or MRC) qualification. These grlevors hold the Occupation Therapy Assistant (OTA) designation and worked in the Occupation Therapy Department, prior to the establishment of the STEP Department. While they were employed In the Occupation Therapy Dept., as Occupation Therapy Assistants, their positions were classified as RCI2. Upon transfer to the STEP department they continued to have the RCI2 classification, although they were filling a new position In a different department. The only RCI2 grievor to testify was Ms. Faye Couch. After she joined the STEP Department, she developed and started teaching a Weaving Programme. She used that programme to teach residents skills such as colour and number concepts, focusing, and visual attention. She revised the written programme only periodically, but adopted It to suit each indMdual resident's needs, The Instructor 2, Recreation and Crafts class standard reads. . ( ( 21 INSTRUCTOR 2, RECREATION AND CRAFTS CLASS DEFINITION. This class covers positions of employees, usually in the Department of Health, who participate on a full time basis, in any or all phases of the recreation and crafts programme, either In the Recreational and Crafts service or In the therapeutic occupational Therapy service of a departmental institution. They may be held responsible for the planning and conduct of a specific area of recreational and/or crafts activities. Including the direction of up to three assistants, or they may participate in a more general way in the recreation and crafts programme as a whole. These employees plan and conduct programmes of recreational and / or crafts activities and demonstrate and give instruction to patients or residents, They are required to co-operate fully with medical, professional and other Institutional staff; to adopt activities and methods to special needs and abilities of those they instruct and to provide technical direction to such other staff as may be assigned from time to time to assIst In the programme, as well as more Junior Instructors and volunteer helpers. They arrange, or assist in arranging special events; schedules of games or other activities; field trips away from the institutions and they may be responsible for the care and safekeeping of the patients or residents during the periods they are in their charge. They may requisition supplies and maintain all required records and reports. QUALIFICATIONS 1 Grade 10 education, preferably Grade 12, a working knowledge of recreation facilities and methods and/or demonstrated competence in at least one specific area of the arts or crafts or successful completion of the Departmental Occupational Therapy Assistant's course.QB an equivalent course, 2. At least one year of experience as an Instructor 1, Recreatlon and Crafts OR acceptable previous experience such as may be obtained in the Armed Forces, Y.M,C.A. or community recreation work OR an acceptable combination of formal training and experience. 3 Willingness and ability to work with the mentally or otherwise handicapped , willingness to work unconventional hours; satisfactory physical condition; tact; patience. NOTE The experience qualification (Item 2) is waived for successful graduates of the Occupation Therapy Assistants or Equivalent course. ,~ ( ~ ( 22 The union concedes that the OTA qualification is recognized by the RCI2 class standard. However counsel submits that the grievors' duties and responsibilities do not fit within the Recreation and Crafts class series or the RCI2 class standard for three reasons. We only need to consider one of the grounds put forward by the union. That is that the ReI class series only contemplates the conduct of "activities. in the sense of a recreation or leisure activity On the contrary the programmers in the STEP Dept. do not do their programmes for purposes of recreation or leisure. For example, although "weaving" Is listed as an activity In the preamble to the RCI class series, Ms. Couch does not teach weaving to her resident clients as a recreation or leisure activity Rather, she uses weaving as a tool to teach her clients one or more cognitive skills. Thus counsel submits that the focus of this class series Is the conducting of activities for recreation or leisure purposes, while the grievors' positions have a completely different ~I." purpose of teaching life skills. Therefore It is submitted that the positions are improperly classified. We note that the preamble to this class series does have some reference to the teaching of life skills. It states that the incumbents ~ also be involved In, Inter alia, the Instruction "in the social graces, personal behaviour and hygiene" Nevertheless, we agree with union counsel that the whole focus of the class series Is the provision of recreational and leisure activity We are of the view that the insignificant mention that the Incumbents.!!!SlY teach "the social graces. personal behaviour and hygiene" Is not sufficient to capture the core duties and responsibilities of the grievors position. This Is amply evident upon a review of the qualifications required by the RCI2 class standard. The formal qualifications required are: 1 The successful completion of the OT A course or equivalent course .Q! 2. Grade 10 education, preferably grade 12, working knowledge of recreation facilities and methods and/or demonstrated competence In at least one specific area of the arts or crafts. I ~ ( 23 An incumbent holding the OTA designation has had some training in the type of programming done by the STEP instructors. However, the class standard envisages that employees without the OT A designation can properly hold positions classified as RCI2. An employee with "Grade 10 education, preferably Grade 12, a working knowledge of recreation facilities and methods and/or demonstrated competence In at least one specific area of the arts or crafts" is qualified under the RCl2 class standard. It is apparent that those qualifications need not involve any training related to programming, We agree with union counsel that the mention that employees may be involved in the Instruction in "social graces, personal behaviour and hygiene", is not sufficient to being the grievors' positions within the RCI2 class standard. While the preamble envisages that employees~ as an incidental matter be involvecJ in Instruction In certain life skills, the grievors perform programming ~ duties as the core of their job. See, Re Anderson 497/85 (Roberts) The core duty of the grlevors, i.e. programming, is given little or no weight in the class standard series. Accordingly, the Board concludes that the four grlevors are Improperly classified as RCl2. We have earlier concluded that the STEP instructor positions are properly classified as RC2. Therefore it would have been logical for these four employees also to be so classified, because It Is common ground that their duties are very similar However the parties appear to be agreed that the DSW (or MRC) Is a mandatory requirement in the RC2 class standard. These grievors do not possess that designation. In the circumstances, the Board has no alternative but to direct that the four grievors' positions be properly classified. ,~ ( t ( \ .; f ; 24 In terms of retroactivity there is no evidence with regard to these four grievorswhlch would caUSj3 the Board to depart from the usual 20 day retroactivity In summary then, the outcome of this proceeding Is that the grievances filed by the STEP instructors are dismissed. The grievances of the four SrEI instructors are upheld as described above. The Board remains seized In the event the parties encounter difficulty implementing this award. Dated this 15 day of April, 1993 at Hamilton, Ontario ~U~ N. Oissanayake irperson ~v Member ~ -