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HomeMy WebLinkAbout1977-0167.Williams.80-11-13t. 4 . fi -2- This grievance relates to the events surrounding the reclassi- fication of the position of Administrative Supervisor in the Finance and Administration Section of the Northwestern Regional Office of the Ministry of Natural Resources in Kenora, Ontario. This position was reclassified from the Clerk Stenographer 3 level to the Clerk 5 General level effective July 1, 1977 while the present incumbent, Mrs. William Marchant, was performing the duties of the position. The grievance now before the Board alleges that this reclassi- fication concealed the creation of a new position which ought to have been posted in accordance with the provisions of Article 4.1 of the applicable collective agreement. That-section provides: 4.1 When a vacancy occurs or a new position is created in the bargaining unit, it shall be advertised for at least five (5) working dayzprior to the established closing date when advertised within a Ninistry, or it shall be 'advertised fdr at least ten (10) working days prior to the established closing date when advertised service-wide. All applications will be acknowledged. Where practicable, notie of vacancies shall be posted on bulletin boards. The grievor was at the material time a Clerk 4 in the Engineering Services section in the Same office, and thus had some familiarity with the events as they unfolded. In particular, he says that he would have regarded the job, when classified as Clerk 5, as a promotion for which he would have applied. There are, however, certain factors which render the present grievance more or less - but not entirely - moot. In particular, it appears that the reclassification of Mrs. Marchant's job as a Clerk 5 was in error, and it was consequently reclassified at the Clerk 4 level effective December 1, 1977. Although there was no express admission to this effect, the grievance was argued on the basis that the grievor would not have applied for the job at the Clerk 4 level, since it would have been only a lateral transfer. If it is - 3 - necessary to do so, we find as a fact that the grievor would not have applied had the job been reclassified correctly from the beginning. We are thus left with the grievor's claim to have been given a chance in a competition for the job performed at all material times by Mrs. Marchant. It is clear that Mrs. Marchant never ceased to do this job, and so a "vacancy" never arose. The grievor's claim could only succeed if changes made to Mrs. Marchant's job altered it so fundamentally as to make it a "new job".as set out in Article 4.1. It is equally clear that there is no evidence upon which we could conclude that the grievor would have been awarded the job had he applied. He would likely have been in competition with Mrs. Marchant, and we have no evidence at all about their relative "qualifications and ability", and only inferential knowledge about the "length,of continuous service" of each of them; these are the only factors which, under Article 4.3; can influence the filling of a job posted under Article 4.1. Thus, given that the grievor would not have applied for the job but for the mistaken classification and that there is no evidence that he would have been the successful applicant even had he applied, this is not a case for specific relief or even for damages. It is, at most, a case where this Board might make a declaration as to,what should have been done. On that basis, we turn to the evidence. Mrs. Marchant was hired as a Clerical Stenographer 3 in 1973, at which time a position specifi- cation was completed for. her job (Exhibit 3). The evidence makes it clear that her job "evolved" over the years as more work of different - 4 - kinds was assigned to her. Some flavour of the change in the posi- tion can be found in the evaluator's notes giving reasons for the classification of the position at the level selected. In 1973 those notes stated: -position of an employee who takes dictation and transcribes material and performs varied semi- routine clerical tasks according to approved procedures. -preparation of reports, etc. requiring judgment in the selection and presentation of data When the job was reclassified at the Clerk 5 General level in 1977, the notes were as follows: -Responsible clerical work requiring detailed knowledge of administrative practices -Decision making involves judgement in the interpretation and application of policy or administrative directives to problems where the intent of existing instructions is obscure in specific cases, e.g. accomdation, facilities (furniture, equipment), purchasing, etc. -Large degree of independence; senior level contacts required. Finally, when the job was assigned its present Clerk 4 level, the following reasons were given: -Position of employee performing a variety of responsible clerical tasks requiring a good background knowledge of specific regulations, statutes, or local practices, e.g. acts as purchasing officer, controlling budget, develop- ing records management system, -judyement is required in dealing with variations from established guidelines e.g. deciding on best supplier for office goods and services, quantities according to changing user demands i.e. fire operations, -supervises up to 3 unclassified staff performing straight forward clerical/stenographic duties.' To some extent, the language used in describing jobs is stereo- typed by the classi#ication standards being used by the evaluator. - 5 - Nevertheless, it is clear even from the formalized language used here that a person originally hired in 1973 to do stenographic and "semmi-routine clerical tasks" has become by 1977 an employee doing responsible clerical work, supervising a small staff of more junior clerks or stenographers and acting as purchasing officer for the Regional Office. In somewhat more detail, Mrs. Marchant began in 1973 in a job which was about half stenographic and half clerical; she was the only stenographer in the section at the time. The Regional Office had only existed in its present form since an extensive re-organization effective April 1, 1973 had concentrated many functions at the Regional level. By 1977, Mrs. Marchant had assigned virtually all of her stenographic duties and had delegated the actual performance of a number of her clerical duties to her staff, she had become the purchas- ing officer for the Regional Office and she~had supervisory responsi- bility for other employees. The evidence clearly reveals that the job evolved gradually, sometimes imperceptibly. For example, she began to act as a purchasing officer in 1974 when a particularly bad forest fire season had required the presence of nearly everyone else, including purchasing officers, in the field. That function grew until, in 1977, it constituted nearly half of her job. In the process, she absorbed all of the purchasing previously done by the grievor, a fact which is nevertheless irrelevant to this particular grievance. Similarly, one other employee was hired in 1975, and Mrs. Marchant - 6 - became a supervisor. By 1977 supervision constituted a quarter of her job, and her staff had grown considerably. The essence of the Union's case is that the assignment of duties to Mrs. Marchant has created a new job~in a new classification at a higher level. It seems to us that this conclusion is irresist- ible, given the evidence presented. What Mrs. Marchant did in 1977 is so different from what she was hired to do that it could not be reasonably characterized as a mere alteration in job duties. The difficulty is how to decide whether this constituted any breach of the collective agreement by the employer. There is very little arbitral jurisprudence, among the numerous cases on classification, vacancies and job posting, which advances this matter much. Only one case was cited by the parties (by the Union in fact) but we are, with respect, unable to see how it is relevant to the matter before us. Perhaps the best starting point is the collective agreement which, by force of s.17(1), is deemed to provide that it is the exclusive function of the employer to determine, among other things, employment, appointment, complement, organization, assignment, work methods and procedures, and classification of positions. The only limitation on this general authority appears to be Article 4 of the collective agreement, which seems to be accepted as outside the scope of the defined managerial prerogative.' The employer, therefore, may shift duties around among employees, assign. new duties to an employee or withdraw duties from an employee without hindrance, - - 7 - provided that appropriate alterations to classifications are made. It may also create and classify new positions, but if it does it must fill those positions in accordance with Article 4. Did the employer create a new position around.Mrs. Marchant, thus lead- ing to a breach of Article 4.1 when it failed to post that position? The onus in this case falls on the Union, and it is a very difficult onus to meet. Incremental enhancement of a job can certainly produce a different job, and indeed it did in this case. But demonstrating just when the accretion of new duties so changed the character of the job is not easy, and the grievor appears to have made this task more difficult by laying stress on the purchasing aspects of Mrs. Marchant's job. We are, at least prima facie, more attracted to an argument based'on the assignment -- of supervisory duties over employees to whom ~Mrs. Marchant could assign some of her own more routine duties. In any event, the main changes had, in our view of the evidence, occurred by 1975 when she had taken over a substantial purchasing function and had begun to supervise her small staff. In the circumstances, we do not propose to go any further in our analysis of this case. A permanent statutory arbitration tribunal owes it to the parties to assist them in interpreting the collective agreement, and that may even include declaratory, relief when specific relief is no longer sought. On the other hand our permanent relationship with the parties cannot justify Ecathedra - a - pronouncements in the absence of a fact situation which requires those findings. Our task, as our name implies, is to settle grievances, not to act as an oracle. It may 'be that, at,some time in 1975 or shortly after, an employee for whom a job with supervisory and purchasing duties would have been attractive could have convinced the Board that assignment of those duties to Mrs. Marchant, who had not had them before, was to create a new position around Mrs. Marchant rather than to create the position first and offer all interested employees a chance to be considered. It may be that such a position would properly have been classified at the Clerk 4 level even from that time. None of that happened, however, and the propriety of what did happen ought not to be determined on the basis of a grievance filed long afterwards and based on a misapprehension that a Clerk 5 position was involved. We observe that another grievance related to this matter and filed by the same grievor deals with the proper classification, at the material time, of both the grievor's job and Mrs. Marchant's job. Our assessment of the propriety of the classification pro- cedures is contained in our award in that matter, 33/78. In the result, the present grievance is dismissed. DATED 'AT Toronto this 13th day of Novemberd9BO. Vice-Chairman I concur V. P. Harris Member