HomeMy WebLinkAbout1984-0073.Gala.85-04-16Between
IN THE MATTER OF AN ARBITRATION
- Under -
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (M.F. Gala) Grievor
- and -
The Crown in Right of Ontario .+:.
(Ministry of Transportation and Communications) Employer
Before: E.B. Jolliffe, Q.C. II Vice-Chairman
H. Simon Member
G.A. Peckham Member
For the Grievor: D.I. Bloom
Counsel
Cavalluzzo, Hayes & Lennon
Barristers & Solicitors
For the Employer: S. Barty
Manager, Personnel
Regional Office Ministry of Transportation and Communications
Hearing July 16, 1984
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DECISION
The position held by Mr. M.F. Gala since May, 1979, has
been classified "Accounting Supervisor 1," which was confirmed
in May, 1983, by a Position Specification and Class Allocation
Form, Exhibit 2A in this case. On October 21, 1983, Mr. Gala
grieved that "I am improperly classified" and the matter was
referred to arbitration some months later. The griever seeks to
b’, classified "Accounting Supervisor 2."
The first issue is whether the griever's position -;- as
described in the specification and the evidence --- properly fits
within the standard for "Accounting Supervisor 1." ,The related
issue is whether it matches the standard for "Accounting
Supervisor 2." The standards must be quoted before proceeding
further.
The definition of the Clerical Services Category,
Exhibit 3, opens with the following statement:
This Category includes:
-positions involving'the receipt, sorting,
recording, maintenance, retentibn, posting,
checking, collection and evaluation of records of
data related to such areas as accounts processing,
mail and filing operations, storekeeping,
examination and processing of applications-,-and
general control and record-keeping of functions,
the direct application of rules and regulations,
and the dissemination of programme information and
pertinent regulations.
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The definition also specifies that the Category does not
include:
- positions involving the exercise of considerable
judyement and discretion in such areas as the
selection of courses of action not specifically
governed by policy, directives and regulations, the
evaluation of variables and alternatives, the
analysis oE problems and the determination oE the
imp1 ications CE decisions:
The "Preamble Accounting Supervisor l-2 Series" gives
the following explanation, only part of which need be quoted:
his class covers positions oE employees who
supervise and exercise direct authority ati control
over a ministry accounts prod@ssiq function such
as:
ACCGUNI'S PAYABLE......................
ACCOUNTS RKEIVABLE...................
PAYROLL...............................
SUBSIDY & CLAIMS VERfFICATION..........
WXKKEEPING...........................
Credit for the control of one or more of the
above functions will only he given to the
recqnized line supervisor, except where a large
operation has been subdivided into units each
retaining all characteristics of 'the total
Eunction. Positions of line supervisors of such
units may also he allocat4 to this series.
The series contains four levels, based upon
the followiy Eactors:
KNOWLEIGE AND EXWRI~NCE..............
<JUIXXMENT....;........................
CCWEQ(JENCE OF ERRORS.................
SUPERVtSION........................... .._
Each level of the series reflectr?onoverall
,, -. .-
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level of responsibility and complexity in relation
to these factors, and a number of examples or
benchmark jobs, indicative of each level of
responsibility, is included.
The standard for "Accounting Supervisor 1" is brieE, but
its meaning is illustrated~ by three .examples described as
"benchmarks." The standard itself is as follows, Exhibit 4(a).
Methcx?s and procedures are well-defined and apply
to most situations, but some judgement is required
in determining the relevance of established
polic,ies, quidelines, etc., in specific cases.
Advice is normally sought when solutions require
deviations fran standard methods and routines.
Most transactions adhere to laid-down guidelines
and procedures. Errors may cause some loss.of
employee tilne to correct, but generally do not
affect the on-going operation of the Eunction or
relationships with others.
Normally these positions supervise up to five
employees, and require a minimum of secondary
school qraduation and six years of proqressively
responsible clerical/accounting experience.
It will have been noted that “normally these posit ions
supervise up to Eive employees....."
In the first "benchmark" example; that of the Sectional
Payroll Accountant (Provincial Courts, Criminal and Family
Divisions) it is said that the incumbent supervises one Clerk 4,
General and one Clerk 3, General, being responsible for the payroll
of about 950 employees.
I - 5 -
In the second "benchmark" example, that of an Accounts
Receivable Supervisor (the Ministry of Public Works) ,it is said
that the incumbent supervises Eive subordinates, one Clerk 4,
General, two Clerks 3, General, and one Clerk .3, Typist, the most
important function being the administration of "monthly and quar-
ter1.y billing procedure tor all charges other than pa.yroll
deductions."
In the third "'benchmark" example, that of Vouchers
Payable Supervisor, the incumbent is said tosupervise- Eour
Clerks 3, General and one Clerk 2, General, the principal
function,s being to ensure "correct coding to allocate costs to
Capital Operations and General Administration and to maintain
separate records, etc: for the Ontario Housing Corporation".and
three other bodies (35.per cent of time) and-to ensure "that all
documents supporting requisitions for disbursements are
authentic, accurate and attributable to one of the entities
served..." (30 per cent of time).
I
It is useful to compare the examples.given as well as
the standard itselfwith the functions of Mr. Gala's position,
which is that oE a Unit Supervi.sor (Classified Accounting
Supervisor 1) in the Financial Section of District 20 (Kenoral in
the Ministry of Transportation and Communications. Evidence is
available in the Position. SpeciEication and in the testimony of
two witnesses, but there are serious inconsistencies in such
evidence.
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Based on the "Summary of Duties and Responsibilities"
set'out in the Position SpeciEication, a~Personnel..OEEicer (in
April, 1983).gave the following reasons Ear a Class Allocation of
Accounting supervisor 1:
A. Position of employee who supervises four Clerk
3 Generals in processing of accounts.
B. Position adheres to laid down guidelines and
procedures; e.g. "Reviews accounts.for payment to
ensure they have been prccesscd in accordance with
established procedures and policies, etc."
C. Confirmation of existing class allccation.
Of course; C above is no reason at all. On the other
hand, B corresponds partly --- and only partly --- with one of
the criteria in the class standard. The qrievor's responsibility
was for both Acc@unts Payable and the Budqet.
The statementoE fact inAabove.has been flatly contra-
dieted by both the griever and the District Accountant. The
allocation was "recommended" by a Mr. W.J. McQueen, Personnel
Officer, by Mr. W. Wickett, Head of the District Administration
Section, on March 29; and by District Engineer C:C. Yuill on
.April 4, and finally "authorized" by Mr. S. Barty, Head,
Personnel Services, when it reached the Head Office one April II.
The allocation made in March and April, 1983, stated
that the incumbent was supervising four Clerk 3'Generals at that
time. Both the griever and District Accountant Nyherg have
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testiEied --- without contradiction --- that in March and April
of 1983~ the qrievor was supervising eight clerks, one of them
being a Clerk 4, General. Mbreover , the District Accountant also
testified that "Mr. McQueen did not talk to me." Nor did Mr.
McQueen talk to the griever.
Both witnesses also said that in 1984 the staff of eight
clerks was reduced by three, so that the grievorsw supervises
five --- not four. The reduction occurred for two reasons: two --
clerks retired and were not replaced: in May or June of 1984 the
griever was informed' that the Clerk 4 assiqned to municipal
accounts would no longer be supervised by him but would report
directly 'to the District Accountant, who has testified that this
was a decision of the District Engineer for reasons unknown to
him. Whatever the reason, it had the efEect OE reducing the
clerks' complement to five, which would correspond with one of
the criteria in the Standard for an Accounting Supervisor 1, but
this result was not~achieved until more~than a year after the
evaluation wrongly stated that the~incumbent supervised only fqur
clerks.
The, factual error in the evalua.tion can perhaps be
explained by reEerence to certa~in statements in the Position
Specification, which were erroneous, a def,ect which could have
,..-
been avoided if the District Accountant or the griever had hccn
questioned or shown the draft; Mr. Nyberq cannot recall when he ~
first saw it. The griever says he did not see it until October,
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1983 --- six months after its completion --- whereupon h.e
presented his grievance.
The Position Specification, Exhibit ZA, purports to be
“revised” as shown in its upper right-hand corner. Actual~ly, it
must have been based on an earlier document which had become out-
dated long before April, 1983, when Exhibit. 2A was “authorized.”
Another example of its inaccuracy is the first. section in the
“Summary of Dut~ies and. Responsibilities,” which begins as
follows:
COMMONAL WTIES: On a rotat'iona1. basis is assiqnefl
to the position of Supervisor of an Accounts
Payable/Budget or Payroll/Persl,nnel IJnit.....
It is true that prior to 1979 there was a practice of
rotating the two functions~every two or three years. However,
the griever testified there had been no rotation since 1979; he
supervised the Accounts Payable/Rudgo’t-~unit from 1979 to 1983 and
1984. This was confirmed by District, Account.ant Nyberq, called
as a witness by the employer’s representative, Mr. Rart.y.
Mr. Nyberg also confirmed t.hat. the rjrievor was
supervising eight clerks in April, 19113 --- not four, as t.he
Position Specitication states. F’urther the qrievor was later
supervisinq six, not’five, unti,l. the District Lnqineer (not. t-he I’
District Accountant) decided in 1984 that one clerk shou~ld ht‘
removed from the unjt to do the “municipal accnunt.s,” reporting
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directly to Mr. Nyberg. This change, oddly~ enough, meant
supervision of only five clerks, which would be consistent (for
the first time) with the statement in the standard that an
Accounts Supervisor supervises "up to Eive employees."
Notwithstanding the reductions, Mr. Nyberg testified .;I
that the griever's responsibilities are greater now than they
were in 1979.
What has been said above explains why we .find the
evidence submitted so far in this case to be highly
uns.atisEactory. In a Classification case the Board necessarily
must rely on such important documents as the applicable Position
Specification. When that document is shown to he defective ---
and to have been prepared .without consulting either the employee
or his immediate supervisor --- the Board is obliged to call for
further and much better evidence. In particular, an explanation
is due from those who wrote and authorized the document.
It must be added that this is clearly a case in which
efforts ought to have been made to resolve the issue --- on the
basis of known Eacts --- prior to arbi,tration. In some cases,
for example, a "job audit" is conducted after the presentation of
a classification grievance. Moreover, both the Crown Employees
Collective Bargaining Act in Section 1R and the Collective
Agreement in Articles:.5 and 27 contemplate that such grievances
will be processed through the procedure provid,ed by the
- IO -
agreement. The grievance procedure is not. a mere fnrmai’ity
leading to arbitcati~on; it is an integral and jndispensable part
of the collective bargaining system and the parties should govern
themselves according Ly. The failure to do so has too often meant
that (unlike the very diEferent record in the private sector)
relativel~y few grievances in the Ontario public service are
settled within the grievance procedure, with the result. that a
disproportionate number are referred to arhi~tration.
In this case unEortunately there is no siqn that any
serious ettoqt was made t.o ~clarify the facts or resolve the issue
within the cjrievance procedure. Instead, the parties have come
to arbitration”tiith the record in a state of such confusion that
it is not possible for the Board to reach a firm conclusion at
this time.
There is another issue on which the Board is now
prepared to issue a preliminary decision, as the I%>ard undertook
to do when our decision was rescrv~ed. This relates to the
production of certain documents demanded hy the Union pursuant,~to
Article 5. 1.3 of the Cnl~lcctivc Agreement, whi&h is as fr,l II>WS:
The Employer up& written request either hy t.l~?
employee or by the Union shal~l make available a11
information and ,provide copies of all documents
which are relevant to t-he qrievance or may he uscxl
by the Employer in the present.ation of ~the cast
before the Grievance Set~tl.ement Roard.
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A few days prior to the Board's first hearing, counsel
for the Union wrote the Ministry (for the attention of Mr. Barty,
Manager, Personnel) with the following request, Exhibit 6:
In accordance with Article 5.1.3 of the Collective
Agreement, we request production of the following
documents:
1. Position Specification and Class Allocation
Forms for Accounting Supervision II positions
in the Ministry of Transportation and
Ccnnnunications;
2. Current position specification and Class
Allocation Form for the Rccountirg Supervisor ~1
positionin the Kenora oEEice of the M'IC.
Of course, the above represent exactly the kind .of
material which ought to have been requested, produced and
discussed in the course of the grievance procedure, which is what
happens when both parti~es clearly understa'nd their
responsibilities. Instead, the request was not made until a few
days before an arbitration hearing. The Kenora Specification of.'
April, 1983, and other Kenora documents were produced, but the
employer argues that it had no obligation t0 produce
specifications of employees classified Accoun'ting Supervisor 2.
The Union submits it is entitled to show that other
employees performing the same duties as the griever have a hiqher
/ classification, but that it has no access to such intormation
unless disclosed by the employer. Reference was made to the case
of Michael Brecht et al 171/81 (,Ministry of Community and Social --
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se.rviccs) in which judicial review was succusstully sought by the
Union. The Divisional Court (Saunders, Callaqhan and Fitzpatrick
J-J.) summarized then law as follows:
On a classification grievance the Board is
generally mandated to consider two matters, namel.y,
whether or not the griever’s job measured aqainst
the relevant class statiard comes within a higher
classitication which he seeks, and even if he Eai1.s
to fit within the higher class standards, whether
there are empl.oyees performing the same dutit?s in a
hiqher, more senior classification. The juris-
prudence of the Board cited to uS’on thi,s
application indicates clearly that the<e matters
have been consi~dered by the f?oard on classi~fjcati~on
grievances. +ch matters in no way inErinqe the
management-rights provisions of the Act.
The employer’s response to the Dnion’s request made four
points:
(1) .Exhibit 6 failed t<,,iden-tity the relevance of the
Position Specifications mentioned:
(2) the employer’s case would “focus” on the class
standards:
(3) the employer: had complied with the requirements of
5.1.3. by producing the class standards and other documents;
(4) ‘the case ct Bell Canada & Commun.ications Workers -- _-- - ------.----.-
::(1980) 25 L.A.C.(2d) 200 (P.C.Picher) and the authorities cited
therein stand tar the ru1.e t-hat the Union is’not. cntit.lctl to
~embark on a “fishinq expedition” merely to ascertzain whether it
may have a case.
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The employer’s four points are not persuasive Ear t.he
following reasons:
(1) When the griever is classified Accountinq
Supervisor 1 and claims he should properly be classiEied
Accounting Supervisor 2, it, cannot be i.rrel.evant (having regard
to the Brecht case),.. Ear the Union to advance for consideration by
the Board the duties’performed by other ~employees in the same - -- ---
Ministfly having the higher classification. The relevance of
their Position’ Specifications is ‘self-evident.
(2) Both parties are of course entitled to “focus” on
the class standards, and have already attempted t.o do so, but
alternatively*the;Union is also entitled to Eocus on the
Specifications of employees classified Accountinq Supervisor 2,
as was made clear by the Divisional Court in Brecht.
(3) The employer’s choice of material to be produced
under 5.1.3. is not the end of the matter and Eails to meet the
Union’s request for other relevant documents.
(4) The Bell Canada case had nothing to do with 5.1.~3- _- _---
in the collective agreement bptween Mana(Jement Board of Cahinet~
and OPSEU. The observations in the Bell case related to t.hc --
validity of a subpoena duces tecum, ~ -- which the majority considered
to be unduly wide-~ The subpoena had been issued hy the Picher
board at the request of counsel for the Uni,on pursuant to powers
given the board in Section 157(h) of the Canada Labour Code. In
this case no subpoena is involved; the Union is relying on an
obligation voluntarily assumed by the employer in 5.1.3 of the
collective agreement to “make available all information and pro-
vide copies of all documents .which are relevant to the
grievance..~.” Thus, there is no valid analogy between Bell --
Canada and the problem in this case.
Becker-Milk (1974) Ont. .I>.L.R.R. 732 (Adams) was an ----
O.L.R.R. case in which a subpoena duces tecum also received
consideration. It is quoted in Bell Canada at pages 203-204,
aEter which the Picher board made an observation which (entirely
apart from the subpoena issue) has a direct bearinq on this case.
It was said:
To the above comments it must be added that
generally arbitration, unlike procedures before the
Labour Relations Board follows a grievance
procedure which , if applied constructively and in
good faith, should be the vehicle oE some
meaningful pie-hearing discovery. The cha,nces of
settlement before hearing are increased, and the
charges of a protracted arbitration reduced, to the
extent that both parties investigate their cases
and rationally exchange the substance oE their
positions during the grievance procedure. The
industrial relations process does not contemplate a
qame oE blind man’s bluff in which the parties to a
grievance play their cards tar them first time
before the arbitrator.
It is respectful1.y suggested that the parties Ian this
case give consideration to the very sound opinion expressed by
the Picher b~oard in the passage quoted above. On its part, a
Union request for information should be made early in the
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grievance procedure rather than just beEore an arbitration
hearing. On its side, the Employer should be generous and co-
operative in complying with each reasonable request rather than
adopting a secretive or non-communicative posture. :
For the reasons herein stated, this Board considers
that the Position Specifications requested by the Union are
relevant and copies thereof must he produced by the Employer
within 30 days'from the date of this decision. Our understanding
is that the Ministry maintains five regional oEfices and about 20
distinct offices, including the District OfEice at Kenora, in
addition to certain centralized operations at Toronto and
Downsview. It will be suff-icient to satisEy the requirements if
the Ministry produces copies of current Position Specifications
for all positions,, if any, classified Accounting Supervisor.2 at
all Regional and Districtoffices in Ontario,, and it is so
directed.
In evidence to be adduced by the parties, there is's'
certain danger that further confusidn may arise by reason of
difEerent dates, all of which have some relevance.
.,
(1) The Position Specification and Class Allocation on
which the employer relies was apparently prepared in April. 1983,
and purports to have an effective date of March 1, 1983.
171 TOP nrievance was oresented on October 21, 1983,
-.16 -
very shortly after the,grievor became aware of the Position
SpeciEication and Class Allocation which had been prepared six
months or more earlier. Strictly speaking, the Board must decide
whether the griever was, as he alleged, improperly classified at
that time. ..
(3) Naturally, much of the testimony given ate the
first hearing related to the facts as they existed in 1984 rather
than in 1983.
When hearings are resumed in this case, witnesses should
make an effort to distinguish clearly between the facts in April.,
1983, the facts inOctober, 1983, the facts,in 1984 and the facts
as they exist in 1985.
It is of cou& Ear the parties to choose the witnesses
to he called. Nevertheless, the Board has already indicated that
there were statements in the Position Specification anB in the
testimony for which an explanation is due. The Board would
therefore expect that Mr. McQueen and the District Engineer as
well as Mr. Nyberg and the griever wiL1 be called to t@stiEy.
Mr. Barty was spokesman for the employer at the first heaingi ,As
it was Mr. Barty who authorized the Class Allocation of April,
1983, the employer is asked to consider whether it miqht~be more
approp~ria,te for him to appear as a witness, with sotie other
person acting as the employer's advocate.
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AEter the Employetr compli.es with the direction to
produce, the parties are to advise the Reqistrar, who wili
arrange a further hearing at which the parties would be wise to
tender Eull~er and better evidence.
Dated at Toronto
this 16th day of
April, 1985.
H. sb, Member
A---W.
G,A. Peckham, Member
ERJ-: sol