HomeMy WebLinkAbout1982-0451.Campbell et al.83-12-12IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Terrence H. Campbell, et al)
Grievors
- and -
The Crown in Right of Ontario
(Ministry of Citizenship and Culture)
Employer
Before: E. B. Jolliffe, Q.C. Vice Chairman
J. McManus Member
W. A. Lobraico Member
For the Grievors: S. Laycock Grievance Officer
Ontario Public Service Employees Union
For the Employer: R. B. Itenson
Senior Staff Relations Officer
Staff Relations Division
Civil Service Commission
Hearings: May 10, 1983 June 9, 1983
. . .
On June,9, 1982, Mr. Terrence H. Campbell presented
the following grievance:
I grieve that I am improperly classified as'an Archivist II
in violation of Article 5.1.1 of theYWorking Conditions
Collective Agreement.
Apart from the collective agreement, such complaints
are grievable and arbitrable under subsection (2)!(a
18 in The Crown Employees Collective Bargaining Act
1 of Section
:
.
As the "settlement required" the grievor, Mr.
Campbel .1 , asked
That I be properly classified asp an Archivist III retroactive
to January.15, 1982.
On the same date identically the same grievances
were presented by five other employees: Barbara Lazenby Craig,
Allan J. MacDonald, Richard W. Ramsey, Catherine Shepard and
Larry E.Weiler. The relief sought was the same, except that
the five others asked for retroactivity to February 25, 1981.
-3-,. ,.
Although,treated for some purposes as part of the
Ministry of Citizenship and Culture, the~.Archives of Ontario ---
in which all the grievors are employed --- is a creation of
statute : the Archives Act, R.S.O. 1980, chapter 27. The
scope and importance of the work are clearly set out in the Act
and provide the context in which this case must be decided.
The complete t,ext is as fp,llows:
CHAPTER 27
Archives Act
(8) “Archives” means the Archives of Ontario;
(b) “Archiv&t” means t;e aficer appointed to administer
this Act: 1972, E. I, s. 14 (I), @II.
2. Tliere shall be an Archivist who shall be appointed*rchlvlar
by the Lieutenant Governor in Council with the rank of a
deputy head of a Ministry and who shall be in charge bf the
administration of this Act under the direction of the member of the Executive Council to whom the administration of this
Act is assigned. 1972, c: 1, s. 14 (I), #arl.
‘3. Subject to the regulations, all original documents.~$$,$Or
parchments, manuscripts, papers, records and other mnttersdocunw~r;l in the executive and administrative departments of the
Government or of the Assembly, or of any camr+sion,
ofice or branch of the public service shall be delivered to
the Archives for safekeeping and custody within twenty Years from the date on which such matters cease to be in current use. R.S.O. 1970, c. 28, s. 3; 1972, c. 1, s. 14 (2).
4. The Archivist is authorized and directed to receive and f;yp;$-
grant discharges for all such matters as are transferred to the A~C~IYOI
Archives under this Act and the Archives is thereafter
r-wnsible for the safekeeping of the matters so transferred.
R.S.o. 1970. c. 28. s. 4: 1972, c. 1. s. 14 (2).
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3. The objects of the Archives are,
(4 the classification, safekeeping, indexing and cata-
loping of all matters translcrred to the Archives
under section 3;
(b) the discovery, collection and preservation of material
having any bearing upon the history of Ontario:
(c) the copying ,and printing of important public dbcu-
ments relating to the legislative or general history
of Ontario;
(d) t!lc collecting of all documents having in any sense a
hcnring upon the political or social history of Ontario
and upon its agricultural, industrial, commercial or
linnncial development:
(c). the collecting of municipal. school and church records;
fJ) the collection and preservation of pamphlets, maps,
charts, manuscripts, papers, regimental muster rolls
and other matters of~general or local interest histori-
cally in Ontario;
(g) Ihc collection and preservation of inlorrnation respect-
ing the early settlers 01 Ontario, including pioneer
cqwicnce, customs, mode of living, prices, wg~s,
boundaries, arcas cultivated, and home and social lift:
[B) the collection and preservation of the correspondence
of settlers, documents in private hands relating to
public and social affairs ‘aud reports of local events
or historic interest in domestic and public life;
(i) thr conducting of research with a view to preserving
the memory of pioneer settlers in Ontario and of their
early csploits and the part taken by them in opening
up and developing the Province. R.50. 1950,
c. 28, s. 5; 1972, c. I, s. 14 (2).
rrrrrrcrrlon Of OrnCM 6. Suhjrct to the regulations, no oficial document, paper,
docunwnl~p pamphlet or report in the possession of any ministry or branch
of the public wrvice or of the Assembly shall be destroyed or,
pc~l~uwntl~ removed without the knowledge and concurrence
of the Archivist. R.S.O. 1970, c. 28, 5. 6; 1972, c. 1 s. 2.
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w~;ad
7. A copy of any original document in <he custody of the
Archivist. certified under his hand and seal to be a true copy, is
primnjlrrir cvidcnce of the authenticity and correctness of such
donmcnt. R.S.O. 1970, c. 28, a. 7.
(n) respecting the administration of the Archives and
thr duties of the Archivist;
(b) prescribing the matters tha.t shall be transferred to
the Archives under.this Act and extending or reducing
the I’criod that shallelapse beforeanysuch mattcrsarc
transferred to the Archives;
(c) .for the classification of archives and other matters in
the Archives and the preparation of proper calendars, ‘.
catalogues and ~indexes for the purpose of making
such archives and other matters accessible for pur-
pqses of official; scientific and historical rrsenrch;
(J) directing the manner in which documents, papers,
pamphlets or reports in the office of any member of
the Executive Counciltor in any ministry or branch of
the public service or the Assembly shall be disposed of
: from time to time and the class of documents, papers,
pamphlets or reports that shall be deemid to be public
archives. R.S.O. 1970, c. 28, s. 8; 1972, c. I,
5s. 2, 14 (2).
0. Nothing in this Act shall be taken or deemed to autborizeF,$,:d,T&$
lhe destruction or other’disposition of any official document,
pqxr,.map, plan, report, memorandun~ or other matter in
contrave’ntion of any order of the Assembly or of any express
provision in any general or special Act of the Legislature.
R.S.O. 1970. c. 28, s. 9.
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All the grievors are responsible to Mr. John Mezaks,
Supervisor, Government Records Section. He in turn is respon-
sible directly to the Provincial Archivist, Mr. W. G. Ormsby,
who (according to the Act) has the rank of a Deputy Minister.
The organization chart for the Archives, Exhibit 4, is headed
"A D M I' Archives of Ontario" and adds the words "Reports to: . . .
Deputy Minister 0200-01." The position code for the Archivist
of Ontario is 60-0400-01. (If this seems puzzling, the expla-
nation is to be found in Section 2 of the Archives Act which
provides that the Archivist has the rank of a deputy head of
a Ministry but also provides that he shall be "under the
direction of the member of the Executive Council to whom the
administration of this Act is assigned.")
i‘ ..: Ml-. Mezaks' position is coded 60-0400-22; it was
. cllassified Archivist 3 until 1980, when it was reclassified
P.L.B.17. It may be thought that the change was merely made
to fit Mr. Mezaks' supervisory position into the new management
compensation plan. There was, however, more to it than what
appears at first sight because the "Reason for Submission"
given at the time in Exhibit 10 was "Reorganization of Archives,"
which reflects the changes described by Mr. Mezaks himself and
by one of then grievors, Ms. Craig, in their testimony. Clearly
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it can be deduced that the Archivist 3 classification was deemed
inappropriate for a position having management responsibilities
such as those carried by Mr. Mezaks. The change suggests that
the Archivist 3 classification --- far from being appropriate
for a position within management --- was properly within the
bargaining unit, notwithstanding. the limited supervisory
functions attached thereto.
According to the emp1oyerl.s representative, Mr.
Itenson, the only employees now classified Archivist 3 are two
Indian Land Claim Rese,archers in the Ministry of Natural
Resources, one of whom was a witness in this case. They were
not appointed until 1981 and 1982, so that for some time after
the reclassification of Mr. Mezaks' position there were no
positions at all classified Archivist 3. If it be thought that
the Archivist 3 classification really belongs in the management
category, then it could have been abolished following the re-
classification of Mr. Mezaks' position. The difficulty with
thattheory is that it would then have become impossible to
classify as Archivist 3 the positions at M.N.R., which undoubt-
edly are responsible positions but involve little or no
supervisor~y duties.
-8-
As appears in his position description of May 13, 1980,
Exhibit 10, Mr. Mezaks supervised dire.ctly at that time a staff
of seven professional archivists .(classified Archivist 2)
three "assistant archivists" (classified Clerk 5 General as
shown on the organization chart and referred to therein as
"Archivist Assistant") and clerical support staff. The chart
indicates a.Clerk Typist under his supervision and also an
archivist (Maps & Government Records) classified Archivist 2,
but the latter was not mentioned in Mr. Mezaks' 1980 position
description. There hasbeen testimony that several more are
now employed and others are on contract to assist an archivist,
:% particularly in connection with "special projects."
z
The organization chart shows a "Supervisor Private
Manuscripts," classified (like Mr. Mezaks) P.L.B.17. Under that
position appear four Archivists 2, four "Archivist Assistants"
classified Clerk 5 General, one Clerk Typist 3 and a "Picture
Archivist" classified Archivist 2. Apart from the chart there
is no evidence as to the identity or functions of those working
with private manuscripts. There. are also about 14 other
employees supervised by the Assistant Archivist of Ontario
(classified AGA 18) who is of course like Mr. Mezaks responsible
to the Archivist of Ontario. His subordinates hold various
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classifications (such as Librarian, Technician or Bookbinder)
but there are no "archivists" among them.
It may be well to ,proceed at this point by quoting
the most important documents placed in evidence: the classi-
fication standards for Archivist 2 and Archivist 3 (Exhibits
3B and 3C) established by the employer in July, 1965, which
are still in effect. There is no need to consider the Standard
for Archivist 1, described as "the entry level for training in
archives management."
The following is the "definition" of Archivist 2, the
level now held by the grievdrs:
Employees in position allocated to this class are fully trained and
qualified Archivists. They evaluate the coritent of units'of archival data and draw up plans for their arrangement in units or series sections
and groups. They write descriptions containing historical introductions
and critical notes. 'Ihey assist persons using historical material by pro-
viding prtinent information on historical matters in general or on a
specific subject area and write reports and correspndence arising out of
requests for information. They recommend and may develop techniques for
the preservation of material, and may be required to train, allocate work
to and review completed work performed by archivists in training or sup-
port staff. 'Ihey may study the operations of a government department and
draft schedules for the retention of disposal of departmental records.
Work is assigned in terms of objectives, priority, resources available and
general approach. Work is reviewed on completion for validity of assess-
ment and for compliance with instructions but not for accuracy of detail
or thoroughness.
The "qualifications" for an Archivist 2 were specified
as follows:
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1. A degree in Arts from a university of recognized standing,
preferably with a major in History.
2. At least three years as an Archivist1 or equvalent
experience in a similar capacity.
3. Aptitude for historical research; facility in oral and
written communication; tact; good judgement; personal suitability.
It is the contention of the employer that the
Standard quoted above corresponds with the duties actually
performed in 1982 and 1983 by the grievor~s.
On the other hand, the qrievors argue that their
duties and responsibilities are more. fairly and accurately
des'cribed by the standard for Archivist 3, the level defined
by the Standard as follows in Exhibit 3C:
This class covers supervisory and archival management work
involving responsibility for identifying, evaluating and
arranging historical documents and public records in a specialized
section of the central archives, e.g. non-qovernment records,
government records. These employees train, allocate work to and
review work,performed by subordinate archivists and support
staff. They assess the significance of possible accessions and
the desirability of acquisition of public records and archival
data. 'Ihey study the operations of government departments and
draw up schedules for the retention and disposal of records.
'Ibay also conduct research on behalf of government departments
into subject matter areas where the documentation is incomplete,
the facts are obscure or controversial and where an error in 't
judgement could have serious consequences.
1.
2.
3.
A degree in Arts from a university of recqinized standing,
preferably with a major'in History.
At least six years' exprience in archives work; very good
knowledge of the historical material in a particular sub-
ject area.
Cemonstrated ability to conduct historical research;
ability to prepare comprehensive reports and correspon-
dence; demonstrated supervisory ability; personal suit-
ability.
It would be easy to demonstrate that much of the
work done by thegrievors, falls within the rather general
language used inthe definition of Archivist 2 Standard.
For the purposes of thiscase, a more useful comparison
is with the Standard for Archivist 3, the level claimed by
the grievers.
According to the first sentence in the Archivist 3
definition: "This class covers supervisory, and archival
management work involving responsibility for identifying,
Completed work is reviewed for satisfactory attainment of
objectives, and for policy considerations but not for presen-
tation, accuracy or completeness. Work involving controver-
sial issues or which may establish a precedent is reviewed
for validity of assessment and for completeness.
The Archivist 3 “qualifications” are the’ following,:
i
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evaluating and arranging historical documents and public
records in a specialized section of the central archives,.
e.g. non-government records, government records."
The above is a general description of the duties
and responsibilities of the grievor$~ subject to one qualifi-
cation. That much was made clear in the testimony of Ms. Craig,"
one of the,aievors, by her supervisor, Mr. Mezaks,and also by
the Position Specifications of August, 1982, and February,
1983, Exhibits 6 and 7. The qualification is that the incum-
bents do not ordinarily have supervisory or training duties to
perform, although they may at times have such duties, e.g.
when assisted by summer students or --- in: Ms. Craig's case ---
when an a,ssistant is needed on a speciql,,project.
The'word "management." can be ambiguous, but when
used in the context of "archival management work" it clearly
means the management of archival material (and of relations.
with the sources of such material) rather than the supervision
of an organization or corps of employees,
The reference to "a specialized section of the
central archives"is applicable to the grievers. The work
i
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within the Section known rather loosely as "government records,"
although it includes many institutions which are not part of
the Government of Ontario. It is divided into compartments, or
"portfolios," in each of which an archivist is responsible. For
example, Ms. Craig has responsibility for records originating
from the Ministries of Health, Community and Social Services,
the Provincial Secretariat for Social Development and related
institutions such as OHIP; she is also engaged in negotiating
with hospitals for acquisition of their records. There is no
reference to specialization in the class definition of Archivist2.
The second sentence in the .Archivist 3 definition
states that: "These employees train, allocate work to and
review work performed by subordinate archivists and support
staff." As already stated, the grievers are called upon from
time to time to perform such duties --- particularly with temp-
orary help and employees on contract. Most of theirwork, how-
ever, consists in exercising individual initiatives and skills.
On the organization chart, Exhibit 4, there are three"Archivist
Assistants~," both classified Clerk 5 General, and one typist.
In Mr. Mezaks' position description the former are styled
"Assistant Archivists." If there is a distinct :ion between the
since they are two terms it is not recognized in the evidence,
used interchangeably.
i .;
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In the next,sentence,it is said that Archivists 3
"assess the significances of possible accessions and the
desirability of acquisition of public records and archival '
data." This is what.the grievors do as an important part
of their regular duties, both 'in respect of government records
and in respect of institutional documents.
The fourth sentence of the definition states that
Archivists 3 "Study the operations of government departments
and draw up schedules for the retention and disposal of
records." This again is an important feature of the work
done by the grievors. As described by Ms. Craig, each
Ministry prepares a preliminary draft of a schedule for the
disposal of certain records, perhaps in consultation with
the Provincial Auditor. The proposed schedule comes to the
responsible archivist, who may discuss it with Ministry
officials.. The archivist makes recommehdations in favour of
or against the proposal, or asks forchanges. According to
Ms. Craig, her recommendations are invariably accepted and
signed by the Provincial Archivist, Mr. Ormsby. As an
example of what can happen, Ms. Craig told of certain
miners' health records which the Ministry of Health proposed
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to de&3troy. Realizing that they might one day have value
to lawyers or researchers, Ms. Cr-aig was successful in veto-
ing that proposal. It is essential, she said, for archivists
to be conscious of the long-term results of discarding records
which could one day become important. On the other hand,
it is not possible to.preserve forever all of the vast
volume of paper.accumulated by Ministries, agencies of the
Government and other institutions. Thus, much archival
work consists in making informed 'and thoughtful choices.
The next sentence in the definition is couched in
general and rather vague terms: "They also conduct .research
owbehalf of government, departments into subject matter areas
where the documentation is incomplete, the facts are obscure
or controversial and where an error in judgement could have
serious consequences." This sentence undoubtedly applies to
the two persons employed by the Ministry of National, Resources
as Archivists 3 to do research into the origin .and history
of Indian Claims in Ontario. One of them,, Ms. Susan Houston,
testified at the hearing of this case.
,It is not at all clear, however, that the sentence
applies in a literal sense to the duties of the grievers.
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In the broad sense they do undertake work going beyond the
traditional functions of the Archives. Thus they are being
called on to negotiate with municipalities, hospitals and
other bodies for the selection and preservation of data which
might one day be of value for purposes of reference or research.
Experience has shown that,.apart from the activities of the
Government itself, much other material in the form of photo-
g=whs, films, tapes, correspondence, memoranda and even
genealogical records, whether in the possession of an institu-
tion or ,individual,may be of interest to future. generations.
In addition, research is necessary into repositories ,heglected
in' the, past. Ms. Craig referred to "search and rescue missions"
in. which, for example, 'valu~able records had been found in
cellars of old court houses.
Other aspects of the work are not even mentiN oned
in the 1965 Standards for Archivist 2 and Archivist 3 Many
inquiries from scholars and others must be answered. There
is now a reading room where members of the public may have
access to all but restricted material, and those who take
advantage of the facility often require guidance or advice.
As Mr. Mezaks said in his testimony, the 1965 Standards
i.
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seem to be outdated. The scope and volume of the work have
greatly increased since that year. As an example, Ms. Craig
said that in 1977 court records filled only 2,100 cubic feet;
they now occupy 21,000 cubic feet, a tenfold increase. All
material must be adequately indexed so'that he who searches
may find what he seeks. The archivists are now preparing a
"Guide to Holdings" for the assistance of the public. They
are also attempting to keep abreast of technological advances
in the storage and reproduction of material, many of which
were unknown in 1965.
The final paragraph in the Archivist 3 definition
begins by stating that: "Completed work is reviewed for satis-
factory attainment of objectives, and for policy considerations
but not for presentation, accuracy or completeness." This may
be compared with the last sentence in the Archivist 2 definition:
"Work is reviewed on completion for validity of assessment and
for compliance with instructions but not for a'ccuracy of detail
or thoroughness." There is no great difference between the two,
but it is proper to consider which sentence corresponds more
closely with the responsibility carried by the grievers.
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According to the evidence, Mr. Mezaks himself carries
a "portfolio" of departmental records (the Ministries of Natural
Resources, PublicWorks and Government Services) so that much
of his time is spent doing the same kind of work as that done
by his subordinates. It seems clear that it would be impossible
for him to follow c,losely their diverse activities. He is,
however, responsible,for "at$endance, budgeting, performance
reviews and discipline." Questioned about his supervisory duties;
he testified that he controls the flow of schedules through the
Archives and distributes them to the appropriate Archivists 2,
who must recommend destruction or preservation after assessing
actual or potential value. He said: "I have a second look and
if 'I agree I co-sign, but very seldom do I question their
decisions." He agreed with Ms. Craig that the consequences of
an error could b.e "quite serious." She had testified that her
own recommendations had never been rejected, and others very
rarely.
Mr. Mezaks also said in his testimony: "I don't
review their work regularly. We do have reviews once a year
to discuss whether objectives have been met or not." He
explained that his subordinates are so experienced and well-
qualified that he can rely on their assessments.
The last sentence of the Archivist 3 definition states
that: “Work involving controversial issues or which may establish
a precedent is reviewed for validity of assessment and for com-
pleteness." There is little or no evidence on this point but it
seems likely that either an Archivist 2 or an Archivist 3 would
consult Mr. Mezaks or Mr. Ormsby about such matters.
On behalf of the employer, Mr. Itenson said~ the
grievers had failed to meet the burden of proof,and he declined
to tender evidence. It therefore becomes necessary to review
further the testimony of Mr. Mezaks; who had been called as a
witness by the representative of the grievors, Ms. Laycock.
After three years of experience as an archivist, Mr.
Mezaks was classified Archivist 3 in 1966 and received his
present classification about two years ago. He.said the change
in 1981 was due to "the appointment of Mr. Ormsby" and the
ensuing reorganization. Apart from continuing to.have his own
portfolio, he serves as "an adviser to the archivists --- when
they ask." He said the work,has changed considerably since 1977
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and "both Mr. Ormsby's job and mine have been evolving."
The complexity and volume of archival work have ih-
creased in recent years. According to Mr. Mezaks, if an agency
does not possess an adequate records management program or staff,
archvists must intervene to take inventory and protect the
records. A direct transfer form is executed by the agency. An
archivist serves on a "Common Records Committee," the purpose
of which is to achieve some uniformity in record-keeping
throughout Ministries. Recent changes also include contracts
for the acquisition of school and hospital records or their
conservation. The public was now more aware of the archives
and,it was necessary to give'advice to those seeking information,
including government officials, lawyersand academics. Mr.
Mezaks referred also to the question of "confidentiality;" some
records were stored subject to restricted access or no access
for a period of years, and prob.lems had arisen as to whether the
appropriate period should be 30 years or 100 years:, or some
shorter period.
Referring to Exhibit 6, the Position Specification of
February, 1983, Mr. Mezaks agreed that he signed it, but testified
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that he thought it "incomplete" because "it does not mention
outside contacts and it does not mention ~their role in
archival management." We had not seen the class allocation at
the foot of Exhibit 6 until the day he testified.
As for supervision, Mr. Mezaks said: "They do have
technical supervisory responsibility for summer students,
assistants and contract help. There's in-house training and
also they assist in training records management personnel. They
take part in workshbp seminars for Ministry personnel and explain
the archival perspective to:municipal clerks and treasurers."
Cross-examined, M;.Mezaks.said the archivists had
thoughtaslong ago as 1977 that the Position Specification of
that year, Exhibit 5, "did not recognize their worth." In 1979
they asked Mr. Ormsby to "do something," and he approached the
Personnel Branch of the Ministry. A visit was planned but did
not occur because the personnel officer involved went to another
post. The new officer promised a review as soon as another
matter, could be completed: a Clerk General 4 had threatened to
grieve unless reclassified to level 5. That officer resigned
and another took his place. Thus the archivists' problem dragged
i.
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on until a new specification was prepared in March and April
of 1982. It was returned to Mr. Ormsby bearing the personnel
officer's comments, with some of which Mr. Ormsby and Mr.
Mezaks did not agree, particularly because of certain omissions.
A revised version was submitted in August (afte.r ~the grievances
had been presented) but when Mr. Mezaks inquired in January, 1983,
about its fate, the personnel officer answered that "he didn't
know which one to sign." After some further revision, Exhibit
6 was signed ~by Messrs. Ormsby and Mezaks on February 1, 1983.
The class allocation, however, was not signed by the "authorized
evaluator," Mr. H; McNauqhton, until March 30, 1983,:exactly
six months after these grievances had been referred to arbitration.
As a further example of change ,Mr. Mezaks referred
to E,.D.P. records and tapes. In earlier years managers had
"tried~ to avoid scheduling them," but it was now necessary for
archivists to.assess their value. Mr. Mezaks pointed out that
the Public Archives of Canada and the Ryerson Institute now
give courses in dealing with such material, courses which have
been t~aken by several archivists.
Also in cross-examination, Mr. Mezaks said he did not
i .
agree with the Archivist 2 classification, because it failed
to take account of "several important factors." He thought
it 'vmight have been correct in '77 --- but not now." In
particular he mentioned E.D.P. records and many l’outside
contacts." Mr. Mezaks said he was familiar with the standards
and considered them to be "badly out-dated." According to him,
if archivists were to be classified properly, the standards
would have to be revised. He referred also to the archivists'
participation in such management functions as the Security
Comittee and the ,negotiation of contacts with non-government
agencies. He described his subordinates as "professisnals.
Reference must now be made to Exhibit 6, the latest
Position Specification, signed by Messrs.~ ormsby and Mezaks
on .Pebruary 1, 1983. It was on the basis of this document that
a Class ,Allocation was to be made by an evaluator.
In relation to the grievers' claim for reclassification,
certain passages in Exhibit 6 appear significant.
The "Purpose of Position" was stated to be as follows:
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Analyse the long-term significance of records in government
ministries to determine the desirability of their acquisition
for preservation. Arrange and describe various government
records and assist in their use by researchers.
Supervise subordinates in the arrangement of records and
development of finding aids. msure confidentiality and
proper access to records in individual portfolios. bavelop
a specialistOs knowledge of ministry records by highly skilled management.of a portfolio of government ministries.
Conduct research having serious consequences on behalf of
government ministries.
The above statement is clearly inadequate in light
of testimony given by both Ms. Craig'and Mr, Mezaks: inadequate
because it says. nothing about institutional records, now an
important component in the work of archivists.
Nevertheless, the'last sentence of, the second
paragraph in Section 1 of Exhibit 6 refers to "outside contacts"
as f.ollows:
Archivists negotiates directly and on an ongoing basis with
various institutions, such as municipalities, school boards
and hospitals for the acquisition, transfer and servicing
of their records.
Further, the following appears in Section 3:
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Preparing comprehensive plans of organization for collections
of records from government ministries and,a wide variety of
qenc+es .
There is a paragraph in Section 3.3 which corresponds
very closely with the last sentence in the first paragraph of
the Archivist 3 definition. It is as follows:
Conducting research on behalf of government ministries and
agencies into subject matters when the documentation may be
incomplete, the facts obscure or controversial and where an
error.in judgment could result in financial loss or embarrassment
to the government.
The function described above is not mentioned at all .
in the Archivist.2 definition.
The whole of Section 3.4 in Exhibit 6 deserves attention.
It is said to require 10 per cent of the incumbent's time.
PARTICIPATES IN MANAGEMENT RSSPONSIBILITIBS BY:
Allocating wxk to Archivist Assistant and summer student assigned
by the Section Supervisor on a project basis and overseeing the
progress of work assigned and reviewing the final product for
validity, accuracy and thoroughness.
Assisting in training and advising new staff members in archival
techniques and methods.
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Determining government records which require archival conservation
or microfilming on the~basis of importance; fragility and use, and
reviewing work performed for the section to determine completion
of projects undertaken.
Exercising professional custodial authority over records of great
intrinsic and evidential value ensuring their preservation.
Assisting in the developsent and implementation of controls
necessary for the proper documentation of accessions, record re-
ception, processing, time analysis and other operations. Note:
May be required to act as Section Supervisor during.his absence.
Reviewing the quality of clerical and typing support services and
assisting the Supervisor to alter practices which are unsatisfactory.
On the whole, the statements quoted above correspond
with the Archivist 3 Standard rather than with the Archivist 2
Standard. The only reference in the Archivist 2 Standard which
might be considered as participation of a minimal kind in
management responsibilities is the following: "They . . . . .
may be required to train, allocate work to and review.completed
work performed by archivists in training or support staff."
That reference does not resemble the rather.detailed description
in Section 3.4 of Exhibit 6 quoted above.
Under the heading of "PERFORMING OTHER DUTIES," Section,
3,.5 includes the following statements among others:.
,,/
I I
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Giving professional advice on archival facilities and procedures
to the staff of local documentary repositories, companies, insti-
tutions and societies as requested.
Representing the Archives of Ckltario at, and participating in;'
various conferences, meetings, seminars, courses, etc., as
'required.
Serving on inter-ministerial committees m behalf of the Archives
of Ontario.
Addressing meetings and training sessions as required.
It will be seen that the professional status of the
grievors has been explicitly recognized in.the foregoing
statements. Similarly, the following references in Section 4
(SKILLS AND KNOWLEDGE REQUIRED) emphasize the.professional
character of the work:
Superior oral and written communication skills and the ability
to deal effectively with paople at all levels.
Commitmant.,t.o keep abreast of developrents in archival science
and technical development by reading, study, and attendance at
professional conferences.
Recognized expertise in the professional field as indicated by
involvement in province-wide archival prcgrammes, publications,
and participation in the work of professional organizations.
On the basis of Exhibit 6 the evaluator (at the foot
of page 1 in Exhibit 6) arrived at a "Class Allocation" of
Archivist 2, stating that he did so "for the following reasons:"
i .
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Incumbents evaluate the contents of units of archival data
(government records) and develop methods of arrangement based
upon principles of archival practice.
'Ihey assist pqsons.using archival material by providing infor:
mation an specific subject areas and by preparing written replies.
They also advise patrons on their research needs when they are
managing the reading room.
Performs other Archivist duties such as assisting in the training
of new staff members and allocating wxk to Archivist Resistant
and summer student who are assigned on a project basis.
It will be noted that the first reason given above
refers to "government records" --- as though that were the
only concern of the Archives of Ontario. The other reasons
given single out relatively minor functions of the incumbents.
In the opinion of this Board, the reasons given do not corres-
pond with and do not logically .follow.,from the statements
in the Position Specification.
There may be some merit in Mr. Mezaks' view that the
1965 standards are's0 out-dated'that it becomes difficult or
impossible to classify the position "properly.'; Nevertheless,
it is our duty to take the standards as we find them and relate
their definitions to the present components of the job, as
proved by Exhibit 6 and the uncontradicted evidence of two
witnesses. It is for this reason that --- earlier in this
i
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decision --- each sentence in the Archivist 3 Standard was
quoted, considered and compared with the known functions of
the grievors.
Mr. Itenson in his argument pointed out that there is
inevitably Some "overlapping" of duties and responsibilities
defined in the Archivist 2 Standard with those defined in the
Archivist 3 Standard, just as there is overlapping between the
definitions of Archivist 1 and Archivist 2.
After careful consideration of the Standards and the
evidence put before us on behalf of the grievers, we are obliged
tom conclude that their duties'and responsibilities correspond
generally with those referred to in the Archivist 3 Standard.
This is said having regard to the evidence as a whole (which
was not contradicted at all) and particularly having regard
to the,fact that important elements of the grievers' functions
in 1982 and 1983 receive no mention in the Archivist 2 Standard,
although those elements or part thereof are expressly referred
to in the Position Specification, Exhibit 6. As previously
stated, no evidence was tendered on behalf. of the Employer.
Further, in our view, the "reasons" for allocation given by the
i .i
- 3.0 -
evaluator were not consistent with Exhibit 6 or with the
proven facts.
In the Brecht case judicial review of
this Board's decision (dismissing six grievances) was sought
by the Ontario Public Service Employees Union. In the judg-
ment of the Divisional Court (per Callaghan J.) released on
December 21,, 1982; it was said:
The obligation of theBoard was to measure the duties performed
by the grievor against either the class standard or other
employees performing the same duties.
In this case there is evidence in respect of two other
positions, which are with the Ministry of Natural Resources.
According to Mr. Itenson, they.are the only positions in the
Public Service now classified Archivist 3. One of the two
incumbents, Ms. Susan J. Houston, was called as a witness by
the representative of the grievors. Her Position Specification
is also in evidence as Exhibit 9.
Evidence about the M.N.R.'position is certainly releVant,
but we are inclined to agree with Mr. Itenson that the work iS
F i
- 3 l-
quite different from that of the grievers. Ms. Houston and
her colleague are engaged in research into a rather narrow
and restricted field .-A- the origin and history of Indian
.'
claims in Ontario. The purpose of the exercise is to provide
information (resulting from the research) to senior officials
of the Ministry responsible for negotiations with Indian Bands
and the federal Government with a view to arriving at settle-
ment of claims, by agreement or by litigation. The work invo1ve.s
collaboration with a legalofficer, participation in meetings
and even recommendations or submissions ultimately to the
Cabinet or a 'Cabinet committee.
In awarding the Archivist 3 classification to the M.N.R.
position 'in August, 1981, the evaluator gave the following as
his principal r.eason:
Positionof employees conducting research into subject matters
tiere the documentation is incomplete, the facts are obscure and
controversial and where errors in ludgement could have serious
consequences.
The reason given could have been given --- with
equal validity --- in the evaluation of the position held by
the grievors at the Archives of Ontario. Indeed, as previously
- ,32 -
:ly similar to the above actually appear in cited, words close
Section 3.3 of the grievers' Position Specification; Exhibit 6.
The M.N.R. position undoubtedly carries high respon-
sibility, but the same must be said of those who appraise the
actual or potential value of a wide variety of records affecting
the public interest as well as all:Ministries, agencies of the .
Government and other institutions which exist to serve the ,,
people of Ontario. There is also a heavy responsibility for
indexing and preserving such records.for future access. Ms.
Houston and her colleague are functioning in a,very.,specialized
field of ,inquiry. On the other hand,, the grievers must function
with compeytence and .good judgment in many different areas.
Moreover, they have more supervisory andmanagerial respon-
slbility than the Archivists 3 at M.N.,R.
As made clear by the Divisional Court in Brecht,
resorting to comparison with other positions is an alternative,
not an essential element, in deciding whether a position is
"improperly classified." For the reasons heretofore given, we
have concluded that the duties and responsibilities of the
grievors exceed those specified in the Archivist 2 Standard and
.
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correspond generally with those specified in the Archivist 3
Standard. Further, we find nothing contrary to that conclusion
in the evidence relating to the M.N.R. position.
We have had the benefit of considering the dissenting
views of an experienced colleague. It has been suggested that
in this case "classification is being manipulated to resolve a
salary problem." The difficulty about that approach is that it
could be said of most classification grievances, sbme of which
have succeeded, while others have failed. It is of course
seldom --- if ever --- that an employee complains of a position
being "over-classified." Invariably the grievance is that the
employee's position should 'be classified differently, at a
higher level. If the grievance succeeds, the normal result
would be a higher rate of pay, but there is little logic in
regarding a grievance as being without merit for that reason.
Moreover, it is not really consistent with the express pro-
vision in Section 18 (formerly Section 17) of the Crown
Employees Collective Bargaining Act that an employee may grieve
"that his position has been improperly classified." Of course
such claims could have been left for negotiation at the
bargaining table, but the Legislature has ordained otherwise.
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These grievances succeed but we do not think it
appropriate to grant all the retroactivity requested. Perhaps
the grievors wereunduly patient in waiting for such a long'
period before presenting their grievances. They could have
grieved in 1981, but did not do so until June, 1982. In all
the circumstances, we think it proper that the following
employees be reclassified Archivist 3, effective June 9, 1982:
Terrance H. Campbell, Barbara Lazenby Craig, Allan J. MacDonald,
Richard W. Ramsey, Catherine Shepard and Larry E. Weiler.
Dated at Toronto
this 12th day of
December 19%.
E.B. Jolliffe; Q.C. Vice-Chairman
J. McManus Member
"I dissent" (see attached)
EBJ:sol W.A. Lobraico Member
Campbell, T.H. et al - 451/82
With respect, I must dissent from the Vice-Chairman's decision
to uphold these classification grievances. It was clearly
evident from the evidence that the problem is one of salary
and using the Archivist 3 standard which was written as a
supervisory and management classification to rectify this
problem is not appropriate. Management and/or the Union
should have been pressing for a review of the class standards
with subsequent renegotiation of the salary range. It is
unfortunate that the classification of Archivist 3 was not
abolished when the position of Mr. Mezaks, the Supervisor
who was then classified as Archivist 3, was put into the new
management compensation plan. This would have prevented the
situation we now find before us where classification is being
manipulated to resolve a salary problem. Such manipulation
will create another problem with the salary relations be-
tween supervisor and subordinate. The use of the Archivist 3
classification in the Ministry of Natural Resources is ob-
viously atypical and should not be used or considered when
dealing with this grievance.
The Vice-Chairman has quoted the Archives Act (3 pages)
to highlight "the scope and importance of the work". We are
fortunate the grievors do not work in the Ministry of Health
where the Public Health Act could be quoted. All Ministries
of the Government function under such legislation and I am
not aware that such information can be used to support a
classification to what is obviously not an appropriate level.
-2-
The re-organization referred to by the Vice-Chairman and
the grievors was mostly for cosmetic purposes. The grievers
have worked for Mr. Mezaks for many years,and it was likely
the implementation of the Management Compensation Plan
which highlighted the need for changes to Mr. Mezaks position
in order to keep it within the management group. Up until
that time no clear definition of Management and Bargaining
Unit positions had been decided and,if the changes had not
been made,the position would have reverted to the Bargaining
Unit. The Vice-Chairman's conclusions are not based on any
facts and are purely subjective as are his conclusions
regarding the position in M.N.R. The position specification
indicates that the positions existed prior to 1981. The al-
location of Archivist 3 is clearly atypical and it is quite
likely another classification could have been used just as
easily.
Much ado is made of the position title of Archivist Assistant
and Assistant Archivist. The fact remains that the incum-
bents are not professional archivists nor are they re-
quired to be. As Mr..Mezaks testified, the grievors do
not supervise archivists and he suggested it would be
preferable to rewrite the standards as they did not fit
into the Archivist 3 classification.
Similarly, reference is made to the position of the
Assistant Archivist of Ontario (AGAlE) on the organization
chart and that the position does not appear to supervise I other archivists. What this has to do with the grievors'
- 3-
position escapes me. It seems to suggest that this
supports use of the Archivist 3 classification.
Many of the assumptions regarding the class standards
and the position specifications are subjective and not
based on any true classification analysis or objective
reasoning. For instance, the definition of "Management"
given by the Vice-Chairman is wrong. The first sentence
must be read in conjunction with the second sentence and
clearly indicates that this level covers management
positions and was used for Mr. Mezaks' position until the
separate management compensation plan was established. The
reference to a "specialized section" in the following para-
graph being applicable to the grievors is also an incorrect
interpretation. The term section refers to that super-
vised by Mr. Mezaks or the Private Manuscripts Section and
not the groupings of Ministries assigned to each Archivist.
To conclude that such assignments represent "specialization"
and therefore support the Archivist 3 classification, is
erroneous and speculative.
Again, the assumptions regarding subordinate staff on page
13 are incorrect and contrary to the evidence adduced at
the hearing. Both Ms. Craig and Mr. Mezaks testified that
the grievors supervised clerical staff occasionally and
that they did not supervise subordinate archivists which is
the main requirement of the Archivist 3 standard. The
Archivist 3 standard covers "supervisory and archival
management work". Clearly the grievors cannot come within
i
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this standard as they do not "train, allocate work to and
review work performed by subordinate archivists and support
staff". The "supervision" done by the grievors is clearly
covered in the Archivist 2 standard which states "and may
be required to train, allocate work to and review com-
pleted work performed by archivists in training, or sup- -
port staff". The Vice-Chairman in this paragraph refers
to the clerical support staff as "Assistant Archivists"
but the evidence was, and also it is clearly shown in
Exhibit 4, that the clerical support staff are called
"Archivist Assistants". In any case, they are not qualified
archivists.
In most cases, an assessment against the Archivist 2 standard
would be just as appropriate particularly when you know that
the supervisor is responsible for his own group of Ministries
and is the Section Head.
The references to miners' health records and the grievors'
actions are those that would be expected of any competent
Archivist, as is that covering the reading room and court
records. To conclude that this is any more than Archivist 2
level work is not founded on facts and may well be a clerical
activity. The increase in the amount of court records is
likely due to annexation of Ministry records and does not
add to the complexities of the job.
The Vice-Chairman also dwells on the responsibilities of the
grievors as they relate to the final paragraph of the Arch-
ivist 2 and 3 standards. In my opinion the Archivist 2
standard is most appropriate. Mr. Mezaks is the one responsible
i i
-5-
for the Archivists work and he cannot give this respon-
sibility to his subordinates and then likely expect his
position to be upgraded as well.
A very important error occurs on page 19. The Vice-
Chairman states "Mr. Itenson said the grievors had failed
to meet the burden of proof and he declined to tender
evidence". This is not correct. Mr. Itenson said that all
the evidence available had been given. The grievors had
testified, as had the supervisor, which is the normal practice
in classification grievance. Therefore, there was no further
evidence he could submit. At the conclusion of argument
he did say that the grievors had failed to meet the burden
of proof and that the grievances should be dismissed, but
that was not the reason he did not call evidence.
The Vice-Chairman also mentions that Mr. Mezaks, the grievors'
supervisor, thought their position specification was in-
complete. Section 3.1 covers the areas which he seems to
believe are missing and it is obvious his assessment of the
specification was superfluous. It seems to me that Mr.
Mezaks has his own axe to grind.
The Vice-Chairman's comments regarding the position specifi-
cation indicate clearly a lack of knowledge of classification
work and the purpose of a position specification. Section 2
of the form is to describe in broad detail the purpose. It
is not a detailed description of every function. Section 3
is intended for that purpose and clearly covers their external
i ‘e
-6-
activities in the second paragraph of section 3.1.
Reference is also made to this "now an important com-
ponent of the work of Archivists". These contacts with
external agencies are included in a paragraph with other
responsibilities which are estimated to cover 8.8% of
their time. This seems to reduce somewhat the importance
attached to the activity in any case.
The reference to section 3.3 of the specification and
the Archivist 3 definition is again subjective. The
wording is obviously a repeat of the class standard but
in any case only covers 5% of their time and should not
be used to justify this change. In addition, the reference
to section 3.4 is adequately,covered by the Archivist 2 stan-
dard, first paragraph. The subsequent conclusion that
Archivist 3 is more appropriate than Archivist 2 indicates
again a lack of understanding of a classification plan.
The class standard is written in broad general terminology.
The position specification provides a detailed description
and a lack of detail in the standard should not be used
to justify a classification grievance. Similarily,
the reference to duties covered in section 3.5 of the
position specification covering a total of 5% of the job;
they are not covered by the Archivist 3 standard and it would
be presumptious to conclude they merit recognition at that
level.
-7-
The vice-chairman departs from the long practice of the
Grievance Settlement Board by considering other positions
whose duties are clearly different from those of the
grievors.
Professor Beatty, the first Chairman of this Board, clearly
defined the jurisdiction of the Grievance Settlement Board
in Re: Rounding, GSB 18/75. He repeated this in Re:
Thompson and Ministry of Natural Resources, 7/76 at page
7:
"In determining whether Mrs. Thompson has been properly
classified, the jurisdiction of this Board, is by virtue
of s. 17(l), narrowly circumscribed. By virtue of that
enactment where, as here, there is no allegation that the
classification system that was established or agreed to
by the employer was applied improperly, this Board's
inquiry as to whether an employee has been properly classified
is essentially directed under two different heads. That
is, and as we have noted earlier in our Re Rounding et al
18/75, decision: -
. . . . . . . . . . ..when faced with a claim that a position is
improperly classified, and assuming those classifications
conform to the general law of this jurisdiction, this Board
is limited by the express provisions of legislation to
determining whether or not on the system employed and the
classifications struck, the employee in question is actually
performing the duties assigned to that position or even
assuming that to be the case, whether that employee is
nevertheless being required to perform virtually the identical duties which, the class standard notwithstanding,
are being performed by employees whose position has been
included in some other more senior classification. In short, it would, under the present statutory scheme, only be in those or analagous instances that an employee's grievance
under s.17(2) (a) would be entitled to succeed.
In the result, and we also noted in our Rounding award,
it is simply of no relevance to a grievance filed under
s.17(2) (a) of the Act that the grievor or indeed this Board -
is firmly'convinced that the wages that are appended to
the relevant classifications do not fairly or accurately
reflect the differences in skill and job duties that are
required in each. To the contrary, the only relevant in-
quiries that this Board is permitted to make with respect
to grievances filed under s. 17(2) (a) of the Act are those it -
which we have previously noted in our Rounding decision.
Accordingly and when such inquiries are made in the
present case, it is readily apparent that this grievance
cannot prevail."
In taking into consideration other positions, the duties
of which are not identical or virtually identical to those
of the grievor's position, the Vice-Chairman is departing
from the Board's practice in an attempt to introduce
his version of equity into the classification system. In
my opinion, the positions are much more responsible
in terms of financial implications and this is supported by
the fact that the incumbents are lawyers.
In conclusion, it is my view that the Vice-Chairman has
replaced the employer's classification system with his own
views of what should be. He states that "we have concluded
that the duties and responsibilities of the grievors exceed
those specified in the Archivist 2 standard and correspond
generally with those specified in the Archivist 3 standard".
- 9 7
Even if the duties of the grievors did *exceed those,
specified in the Archivist 2 standard" (and I am not con-
vinced that they did), the grievors would only be entitled
to the Archivist 3 classification if their duties and
responsibilities were to fall squarely within the confines
of the Archivist 3 standard and clearly, the evidence was
that this was not the case.
I would have dismissed the grievance
Respectfully,
W.A. Lobraico, Member
ch
7