HomeMy WebLinkAbout1984-0645.Boyle et al.dateunknownIN THE MATTER 0F AN ARBITRATION
- Under -
THE CROWN EMPLOYEES COLLECTIVE BARGAIN ING ACT
Between
Before.
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Boyle et al) Grievor
- and -
The Crown in Right of Ontario Employer
( Ministry of Transportation and Communications )
Before:
For the Grievor:
For the Employer:
Hearings:
G.J. Brandt, Vice Chair
I. Freedman, Member
A.G. Stapleton, Member
P.A. 'Sheppard
Counsel
Barrister and Solicitor
Mary Beth Furanna
Staff Relations Officer
Ministry of Transportation and
Communications
July 17, 1986
October 7, 1986
November 25, 1986
February 2, 1987
May 8, 1987
DECISION
The grievors were, in the summer of 1985, aU classified as Renewal
Processing Clerks in the Ministry of Transportation and Communications and
were employed in the Renewai Processing Section of the Ministry located in.
Kingston, Ontario. At that time the position was classified as Clerk 3 General
and the grievors, at various times between June 19th and July 3rd, 1985 all
filed grievances claiming that the position was improperly classified and
asking that it be re-classified at the level of Clerk 4 General and that they be;,.-
paid retroactive to the date that they were hired into the position.
The position of Renewal Processing Clerk was created in April of 1983
when the performance of certain functions within the Ministry was re-
organized and shifted to Kingston. Prior to this time there were 2 units of
the Ministry, located at the Head Office in Downsview, which processed
driver license renewals and vehicle renewals respectively. Employees in
those units also dealt with inquiries from members of public. It was decided
to rationalize these functions and form a single “production” unit which
would deal with both driver and vehicle renewals and another “service” unit
which would deal with inquiries. Co-incident with this decision was another
decision to de-centralize the operations of the Ministry. Consequently. the
“production” unit was moved to Kiiston.
Another important change also occurred at this time. Driver license
renewals had always been done by mail ins. However, vehicle renewals
were done by personal application at the local vehicle registration office by
the end of February in each year. It was decided to change the process for
vehicle renewal registration to one which could be done by mail and which
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was staggered according to the birthdate of the registrant. Furthermore, all
the records for both driver and vehicle renewal were put on line so that they
could be accessed by computer.
The position of Renewal Processing Clerk was developed in 1983 to
handle the mail in driver and vehicle renewals, correspondence that’was
necessary in connection with renewals and certain %ashiering” functions
concerned with the collection and depositing of money. :
Prior to the creation of this position the various duties were assigned
to 2 separate jobs. There was a Censoring Clerk General, classified as Clerk 2
General, and a Cashier Clerk, classified as a Clerk 3 General. When the
various duties were amalgamated and some new duties added the position of
Renewal &cessing Clerk was created and classified at the Clerk 3 level.
The grievance arises as a result of the fact that, beginning in May of
1983, a number of functions came to be added to the job with the result that,
by early 1985, the incumbents in the position began to seek a re-
classification of their position. Before setting out the details of how the job
came to be changed it IS useful at this stage to set out the various attempts ..,
which were made and steps taken to have the matter resolved priorto the
filing of the grievance.
Some employees spoke to one of the supervisors. Mr. Azim khan. in
early 1985 at which tit&the undertook to write up a revised position
description which would reflect the new duties. A revised position
description was drafted and first submitted for re-classification in January
or February of 1985. The Eastern Region Personnel office of the Ministry
confirmed the classification at the Clerk 3 General level. The staff were not
satisfied with that and another position description was submitted in April
of 1985 to Head Office where the Clerk 3 General classification was again
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amfiimed. At a meeting on June 20.1985 employees met with their
supervisors and expressed their dissatisfaction with the classification and
asked whether anything could be done. On June 25th they met with Mr. A. J.
Killian. the Manager of Licensing Operations and presented him with a
document which reflected the changes which the employees thought should
go into the job specification for the purposes of classification.’
Although the evidence is not clear it appears that sometime after the’
classification of the job was confirmed by Head OfTice, Mr. Killian prepared .,
another job description which was designed to address the complaints of the
employees concerning the extent to which the job description accurately
described their duties. Mr. kihian did not regard this revised job description
as adding anything to that which was ift the earlier one which had formed
the basis for the classification. Rather in his view it Worded it better”. In
any event that revised description had no impact. It was sent to Mr.
&r&wright at the Regional Personnel Office who advised that the rewording
would make no difrerence to the proper classification of the job.
The grievances were filed on various dates between June 19th and
July 3rd of 1985. On August 22. 1985 the grievors received the Step 2 reply
to their grievance from Mr. D. F. Calderone. General Manager, Production
Operations. That letter reviewed the history of the dispute and confirmed
that some, though not all of the duties, were probably at the Clerk 4 level
though never classified as such. However, rather than pursue the exercise of
continuing to re-write the job description where the job contained a mix of
duties (some of which were Clerk 3 and some Clerk 4) Mr. Calderone advised
that he was going to re-design the position. Thus, those duties which
appeared to be Clerk 4 duties along with some new ones not done before
were to be put into a new position called Senior Renewal Processing Clerk.
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4.
The rest of the duties aiould remain with the existing Renewal Processing
Clerk position
On September 23.1985 the Senior Renewal Clerk position was
classified as Clerk 4 General. On November 18, 1985 the Renewal Processing
Uerk position waste-classified and remained at the Clerk 3 level. In
October of 1985 the Senior Renewal FWcessing Clerk position was posted and
6 vacancies were filled. Some of the successful applicants were grievors In
these proceedings.
In April 1983 when the position was created it had essentially three
job functions. These were cashiering, censoring and the correspondence
function. Over the summer of 1983 certain other functions were added.
These were IRD functions-( in which .are.included Rrror Resolve functions),
MRS functions and functions in reIati&$to stock allocation.
Prior to January of 1984 these various functions were performed
exclusively’.by individuaf employees, that is. one employee would be .
engaged exclusively in cashiering, another exclusively in IRD functions etc.
However, beginning in January of 1984. the Ministry embarked upon a
rotationsystem under which employees would, after a short period of
training, work in one function for a period of two and one half to three
months following which she would be moved to ‘another function, trained on
it. and work in that function for a similar period of time etc. The training
was actually conducted by fellow employees who were familiar with the job
although it was generally supervised by supervisory staff.
Mr. KilIian stated that his purpose in instituting this plan was to have
a work force that was broadly capable of performing ah of the various
fUrKthS required to be done thereby providing management with some
flexibility in assigning people to various functions as and when necessary.
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In addition he saw this as a means of enriching the job through providing a
variety of tasks to.be done.
By the date of the grievances in June of 1.985 approximately 95 per
cent of the staffahad been trained on and were expected by Mr. Killian and
the supervisory st@~to be able to undertake all d the various functions that
were required to be performed..
We now pass to a more detailed consideration of the particular
functions performed in this postion. The censoring f&Con &oives a
pr&ssing of the applications for renewal of drivers licenses. The clerk
checks to see that the questions on the application form are all answered,
that the application is signed, and that the cheque-or money order enclosed
is made out in the right amouni. If the form is incomplete or if it indicates
that there has been some change in circumstances. eg. that the applicant now
wears glasses, the censoring clerk does not process it. More information may
be required from the applicant before it can be processed and the censoring
clerk fills out an information request form which is passed on to the clerk
performing the correspondence function for attention.
The IRD function involves essentially the same kind of function as
censoring except that it applies to the annual application for renewal of the
vehicle license. An Invitation to Renew Document (IRD) is sent to.the vehicle
owner shortly before the anniversary of his or her birthday. Those
documents can be taken by the licensee to the local office for processing.
However, if they are mailed in they come to the Kingston Office and are
Processed by the grievers.
The mailed in IRD is examined by the clerk to make sure that it is
Properly filled out and that the cheque is properly filled in and signed. It
then becomes necessary to access a computer terminal in orde-r to register
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the vehicle ‘bn line and make sure that any necessary changes or corrections
are recorded on the compute?; Once these transactions are completed a
Valtag or vaLidat@ sticker is issued and sent to the applicant for attachment
to the plate..
There was considerable evidence”some of it confIicting. with respect
to the various functions that are performed in respect of correcting or
updating information on line. .This is referred to as the error resolve
function although it is grouped generically under the IRD function. Some of
the types of changes to the records included name changes, transfers of the
vehicle from one owner ,to another, recording a change from. joint to sole .
ownership or vice versa, and VIN (Vehicle Identification Number I changes
where the .IRD indicates that the vehicle iswrongly numbered. These appear
to have been done from 1983 when the system for vehicle renewals was
changed. -.
The cashier@ function involved the balancing of apnllcations for
driver and vehicle renewals with the money received from applicants,
preparation of money for deposit in the bank, making out the deposit slip
and, until July of 1984 (when deposits to the banks were taken over by
armored car services) waIking the deposit (mostly in cheques) to the bank.
The correspondence function involved corresponding with members of
the pub& whose renewal application was in some way defective and which
required the furnishing of further information before it could be processed.
This was done by means of various form letters each ol which is designed for
a specific purpose.
Two other functions should be referred to at the this point. In 1983
the Ministry introduced the Management Reporting System MS) which
required that censoring clerks had to keep records of the kinds and numbers
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7.
of transactions that they processed and the amount of time spent on each of
the 4 functions described above. Mr. Killian estimated that, once the clerks
were trained in the 4 functions, this recording duty would take on average of
betweeen 2 and 3 hours per week. Secondly, the cashier had certain
responsibilities in connection with the ordering and distribution of controlled
stock, eg. valtags. When supplies ran low she made,out the order, which had
to be initialled by a supervisor. Distribution of stock to the censoring clerks
was done without any supervision. A part of these duties included keeping
track of the stock that remained unused at the end of each week.
This completes a general description of the duties performed by the
Renewal Processing Clerk as of July/August 1985. However, as noted above,
in AUgUst it was decided to re-design the allocation of functions and to split
the job into two.positions the senior of which would perform those functions
which warranted a 4 level classflication. At that time( although this is a
matter of dispute some “new” functions were added to the position.
According to Mr. Killian these were authourixing refunds, NSF denials, RIN
merges and generally, performing “lead hand” functions, that is, acting
without as much supervision as before and having the authourity to resolve
problems on their own without rererence to supervisors. It was Mr. Killian’s
evidence that, prior to the split, these functions were not performed by the
Renewal processing Uerk and that they were under general supervision and
expected to follow prescribed guidelines in carrying out their functions.
The evidence with respect to the degree of supervision of the clerks
before and titer the split is in conftict. Generally it was the evidence of the
grievers who testified that where problems arose in which they didn’t know
what to do they consulted their colleagues (who may well have trained
them) for help, that there was little in the way of direct and close day to day
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supervision over how they carried out their duties. As for the supposedly
“new” duties added to the job the evidence of Mrs. Gibson, one of the
grievous (and one who was successful ln the competition for the Senior
position) stated that her job wasn’t any different after the split than it had
been before the split. Specifically she stated that they had always
authourized refunds, that NSF denials had been done in AUgUSt of 1985.
some 4 months before the job was officially split in October, and that RIN
merges were nothing new.
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9.
The Union submitted that based on an examination of the duties
against the class definition the position should have been classified at the
Clerk 4 level. We shall return to that matter shortly. The Union also
submitted that the grievance should succeed on the basis of the class usage
approach, viz, that the duties performed by the grievers were substantially
identical to those of two other positions, each of which has been classified as
Clerk 4, General. Those two positions were that of Own Choice Plate Clerk
and ReaKd Audit &rk.
The only evidence tendered by the Union in connection with the
similarity of the functions performed by the grievers as compared to those
performed in either of these two jobs was the testimony of Susan Earl, a
Renewal Processing Clerk, and one of the grievors. Rer evidence would
indicate that many of the functions performed by the Renewal Proosssing
Clerk were directly comparable with those performed in the other jobs.
We do not intend to set out her evidence in any detail. Ms. Earl has
never performed either of the two jobs in question. Nor, as she admitted,
does she have any knowledge of the jobs apart from what is contained on
the position specification form. Her evidence was based entirefy on a
reading of the position specification forms for each of the two positions from
which she drew certain inferences as to how those jobs compared with that
of the Renewal Processing Clerk. If this case a&the history of the attempts
made by the grievers to have the position description amended to reflect
what they regarded as an accurate description of their duties tells us
anything it is that the position description form itself may not necessarily be
a conclusive aazount of the actual duties performed in the job. Were that the
case classification cases would, mercifully, be far less lengthy than they are.
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It would be simply a matter of filing the position description with the class
standards and conducting a comparison
It is our respectful opinion that the Union has simply not put before
us sufficient evidence to permit us to apply the class usage approach. At the
very least it ought to have called as a witness someone who had either
performed in the positions inquestions or who had greater familiarity with
the positions than that which could be gleaned from an examination of the
position description.
Consequently, we decline to accept the argument of the Union ‘.
advanced
on the basis of the class usage approach. ‘~
We also heard lengthy submissions relative to the issue as to whether
or not, on the basis of the class standards approach, the grievors should have
been classified at the 4 level. For reasons which follow it is unnecessary for
us either to set out the Class Standards or to enter into the usual detailed
comparison of the duties against the class definition.
It may be recalled that beginning in January of 1984 the Ministry
began to require the Renewal Processing Clerks, who until that point had
been engaged exclusively in either censoring driver renewals, processing
vehicle renewals (IRDsl. cashiering. or correspondence functions. to become
qualified to perform all four of them. To that end a rotational system was
establlshed and the Renewal F~ocessing Clerks were all trained in’all of the
functions. That period of training was to ah intents and purposes completed
by June of 1985.
Thus, as of June of 1985. the Renewal Processing Clerks were all
qualified to perform all of the Clerk 4 functions and could be called upon by
their employer to perform all of them. That call could require them to rotate
between the functions or it could involve an assignment to a specific
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: 11.
function. It should be recalled that one of the reasons for instituting the
system was to give management greater flexibility in assigning duties to
members of the staff.
When the job was split in October of 1985 some of the duties became
level 4 and some remained at level 3 in the classification scheme. At the
risk of some oversimplification it can be stated that the cashiering and error-
resolve portion of the IRD functions became level 4 duties and the censoring,
correspondence and other IRD functions remained at level 3.
There is no evidence which would indicate that the nature of the error
resolve or cashiering functions (i.e.-the level 4 functions) changed between
early January of 1984 and October of 1985 when the job was split. It
follows from this that, for substantial periods of time from January 1984 on
the grievers, and the rest of the Renewal Processing Clerks, have been
performing functions which are manifestly level 4 functions. They have
been so found to be level 4 functions after the job was split and there is
nothing to indicate that they were any different in nature then than they
were before the split.
Does the fact that the grievors were performlngsome level 4 functions
from early January , 1984 on justify a re-classification of the position as a
whole. What about the fact that they were also performing functions which
clearly are level 3 functions? Is it necessary for us to examine the degree to
which level 3 and level 4 functions were performed and attempt a
quantitative analysis?
We do not think it is. The key lies in the fact that, while it may be the
case that some of the grievors might actually only be peforming levei 3
functions, they could at any time be called upon by their employer to
perform level 4 functions.
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The evidence as to what the actual assignments were bears this out.
Lynn Gibson performed the cashiering functions without interruption for “a
good year” starting ln late 1983. Laurie Cow worked on error resolve prior
to January 1. 1984 when the rotation started, on IRDs (part of the duties in
relation to which became Clerk 4 functions1 from January 23 to June 22.
1984 and on cashiering from February 28, 1985 to September 27. 1985.
Thus, a total of 14 out of 20 months were spent on what later came to be
Clerk 4 duties. Leah Brown did error resolve from January to August 1984
and cashiering from April 1985 to August 1985. From August 1984 to April
1985 she was assigned to the correspondence function (Clerk 31 but stated
that during that time she was frequently called on to do IRDs and error
resolve. She also performed some cashiering functions during this period up
to the time that the move from Queen Street to Counter Street was
completed in January of 1985. It was her estimate that she performed Clerk
4 duties for 15 out of the 20 months between January 1984 and August
1985.
It is, in our opinion. clear that these 3 employees, having regard to the
duties which they actually performed from January 1, 1984 to the time that
the job was split, were performing as a Clerk 4. However, we do not stop at
basing our conclusion on what the actual assignment may have been. Indeed
that would be ludicrous for employees would be switching in and out of
different classifications depending on which part of the rotation they were
on. Rather. for the purposes of determining whether or not the grievers
should be classified as Clerk 4, we think it is sufficient that the employer can
call upon a clerk to perform level 4 functions and expect the employee to
measure up to the standard expected of that higher level of classification.
. . . 13
To adopt what might be an inept analogy: a fireman remains a
fireman even though he is not called on to put out fires. If he is at the tail of
~_ his employer to put out fires as and when they occur that is sufficient. Here
the employer wanted to have greater flexibility in being able to assign
different employees to different tasks as and when that may be necessary.
That necessitated a training of the employees in the different tasks. Once
those employees became trained in all of the functions they became liable to
be called upon by their employer to perform them properly. The extent to
which they may have actually been called upon to perform them is, in our
opinion, not relevant to the question of the classification of their positions.
We therefore have come to the conclusion that the grievances should
succeed. The remedy in this case is one of an award of compensation rather
than an order directing that the grievers be re-classified. The reason for
that is that, as of January 1, 1986 a new classification system (OAGI has
come into existence and any reclassification that we might order could only
be effective to December 3 1. 1985. Therefore, monetary compensation is the
appropriate relief.
However, there remains an issue as to the calculation of the period of
time in respect of which that compensation should be paid. The parties are
in dispute both as to the appropriate starting and finishing point of that
period. As far as the end point is concerned it is the position of the Union
that compensation should be paid up to December 3 1, 1985. The Ministry
argues that it should not extend beyond November IS. 1985. the end of the
rotation period.
On this aspect of the matter we prefer the position of the Ministry.
The Union relied heavily, in the presentation of its case, on the fact that as a
result of the rotational scheme all of the Renewal Processing Clerks were
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either performing or in a position in which they could be called upon to
perform Clerk 4 functions. In our assessment of the matter we too have
adopted that view. In view of these considerations we find it difficult to
articulate any intelligent basis upon which the period of compensation
should extend beyond the rotational period.
As for the start@ point counsel for the Union presented a number of
different alternatives. First, it was suggested com&?nsation might be “- ~~‘~ ‘..
ordered retroactive to April 25.1983. the date that the Renewal Processing
Uerk position was created. We reject that claim for the same reasons as
outlined above with respect to the claim by the Union that compensation
should be paid past the end of the rotation period. Equally we see no reason
why compensation should be paid in respect of a period of time prior to the
start of the rotation period.
Secondly, it was suggested that compensation date back to January 1,
1984, the start of the rotation period, or, falling that, July 24. 1984 when,
according to the minutes of a staff meeting held on that day, it is made clear
that management was requiring that “All Renewal Processing Clerks must be
fully knowledgeable on the four main functions, i.e. censoring, cashiering,
MD’s and correspondence.”
Thirdly, it was suggested that compensation might date back to April
19. 198s when the revised position specification was classitied as Clerk 3
general. Finally, it was suggested that compensation might be retroactive to
20 days prior to the flllng of the grievance consistently with other awards of
this Board dealing with continuing grievances such as that which we have
before us.
Having regard to the basis which underlies our reasoning in support of
the grievances the most logical time from which compensation ought to run
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would be the beginning of the rotation period. That is the time when all
employees became liable to be called upon to perform what were later
acknowledged to be Clerk 4 functions. However, as of this point many of the
employees had not performed nor been trained on those functions. Nor did
the Ministry expect them to be capable of performing them until they had
been so trained. Consequently, it would not be appropriate to order
compensation back to January 1, 1984.
A more appropriate date would be July 24. 1984 when the Ministry
did expect that all the clerks be “fully knowledgeable” on all of the four main
functions. However, to choose that date would be to ignore that line of cases
which have limited compensation to a period 20 days prior to the date of the
grievance. Those cases reflect the view that where there is a continuing
course of conduct which can be the subject of a grievance at any time, i.e. a
continuing grievance, “grievers” who postpone their decision to grieve and
seek relief should not be able to claim compensation retroactively to a point
in time when they could have but did not grieve. There are sound policy
reasons which support that approach. If there are disputes or differences
between the parties they should be aired and not permitted to simmer.
Yet there is a competing policy which comes into play in this case.
That is the policy in favour of settling disputes short of invoking the “~.
grievance procedure and having recourse to the Grievance Settlement Board.
A rigid application of the “20 day rule” would discourage employees from
attempting through less formal means to settle their dispute. It would be far
more de&able to grieve and “lock in” a fixed date which would become the
basis for determining compensation in the event of suaess.
In the instant case the employees began to have some concerns in
early 1985 about their classification. They had known since July 1984 that
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they were responsible for all of the fUnctionS although not all of them had
been trained at that time. By the end of 1984 training had virtually been
completed on all of the functions. In early 1985 attempts were made to
have the position reclassified by rewriting the position specification in a way
which would more: accurately reflect the job as it changed and submitting it
to Personnel for classification. Those efforts were unsuccessful but they
should be applauded. Classification officers are far more competent than we
are to classify jobs and to the extent that classification disputes can be
resolved by those., most competent to do so the parties should not be
discouraged from seeking relief through such informal means.
Thus, we do not believe it appropriate to apply the 20 day rule where
informal efforts have been made to achieve a settlement of a dispute short
of recourse to arbitration. Those efforts should be encouraged and, in the
event that they are not successful in achieving settlement and it becomes
necessary to grieve, such relief as might be awarded by the Grievance
Settlement board should be retroactive to the point where steps were first
taken to settle the grievance informally.
We have no precise evidence before us as to exactly when those steps
occurred except that they were taken ln early 1985. Consequently, we can
do no more than issue our award in general terms, that is. that the Employer
is obliged to compensate the grievers hi respect of the difference between
their rate and the Clerk 4 rate for a period from “early 1985” to November
15, 1985. In the event that the parties cannot reach agreement on precisely
when in “early 1985” those efforts were made to obtain reclassification, the
Board can reconvene to resolve the matter.
The board remains seised of jurisdiction in respect of any problems
which may arise out of the implementation of this award.
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Dated at LONDON,~Ont, tbi -day of , 1987.
G. J. Brand& Vice Chair
A. Staplelton, Member
I. F. Freedman, Member
,.: