HomeMy WebLinkAbout1984-0653.Turner.86-03-03653184
654/84
IN THE MATTER OF A GRIEVANCE
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE ~GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Frank Turner) Grievor
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The Crown in Right of Ontario (Ministry ~of Correctional Services)
Employer
Before:
.For the Grievor:
For the Employer:
Hearings: August 26, 1985 and January 8, 1986
P. Knopf Vice-Chairman
P. Craven Member
A. M. McCuaig Member -.-
R. Nabi Grievance Officer Ontario Public Service Employees' Union
J. F. Benedict Manager, Staff Relations
Personnel Branch Ministry of Correctional Services
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DECISION
This case involves two grievances. The grievor,
Frank Turner, complains that he has been unjustly demoted and
also that the ,Employer has failed to properly apply Article 5
of the collective ag'reement. There is little dispute about
the facts which give rise to the grievances.
The grievor was employed at the Guelph Correctional
Centre working in the Powerhouse, and was classified as a
Steam Plant Engineer III. A decision was made to refit the
steam plant and change its thermal power capacity. One of
the results of this change was thatthe plant no longer
required the presence of an engineer of the status of
Mr. Turner. In the reorganization of all the staff, the
grievor's status was downgraded to the.position of a Steam
Plant Engineer II on May 22, 1984. But his salary Andy
benefits' were red-circled for the duration of the collective
.agreement in force at the time. The grievor does not dispute
the bona fides of the Employer's decision to refit the steam
plant nor does he dispute the formula used to red-circle him.
~However, the grievor asserts that his position ought never to
have been reclassified, or alternatively, that the Employer
breached the collective agreement by failing to give him an
alternative position that would have.protected his wages and
benefits in the future.
To~understand the grievances, it is helpful to
consider some of the history leading up to the red-circling
in May 1984. The grievor began working at the Guelph
Correctional Centre in September of 1970. His first position
was' as a Correctional Officer on probationary status until
1971 when he attained the status of a Correctional
Officer II. He held that positions for four or five years.
During that time he often fulfilled the role of a “NO. 1
,
Officer" which gave him some added responsibilities in duties
amongst the other C.O. II'sassigned to a certain ~area.
In 1976,.Mr. Turner was approached by
Mr. Grottenthaler, the person in charge of industries in the
Power Plant, and. the Chief Stationary Engineer.
Mr. Grottenthaler persisted in encouraging Mr. Turner ,to
apply for a position in the power plant, despite Mr. Turner's
initial reluctance. However, he ultimately d~id apply for a
job in the Power Plant and was hired as a Third Class
Stationary Engineer. Within a year, he obtained a second,
class certificate and filled an opening for a Second Class
Eng.ineer. It is clear that he acceptsd the career change and
moved into the Power Plant because of his understanding from
Mr. Grottenthaler that the move would lead to ultimate
advancement beyond what appeared available in the
Cdrrectional Officer stream. He held that job until May,
1984.
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Prior to the renovations done pn the Steam Plant, the
plant was classed as a first class plant. This meant that a
First Class Stationary Engineer had to be employed and in
charge of the plant. Also employed were a Second Class
Engineer and a S~team Plant Engineer III. The refitting of
the plant was completed ,in 1984. The object of the refitting
was to sav,e energy and costs. Because of the changes, the
plant no longer required a First Class Engineer to supervise
and required less personnel;
Before the refitting took place, Mr. Turner would
often work with the assistant. Mr. Turner had no duties of
discipline, or monitoring attendance over the .assistant, but
he did give direction in jobs and give advice. After the
refitting, much of the equipment was changed and, as
i j Mr. Turner expresses it, "I lost my assistant shift
engineer." In other words, Mr. Turner had to work alone.
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Mr. Turner suggests that instead of being demoted or
red-circled, he could have been given a job as a Correctional
Off'icer III because it is the equivalent of a "former
position" he had and that classification would have meant no
loss of benefits to h~im.. The evidence is that there were
openings for Correctional.Officer III's at Guelph in the
spring of 1984 but thatthese positions were not offered to
him. Nor did anyone from the Employer ever speak to him
about alternatives to demotion.
Evidence was adduced regarding his past experience as
a Correctional Officer in the .1970's and his understanding of
the present role' of Correctional Officer III. The thrust of
hi's evidence is that the duties'are the same and that he is
capable of performing~such duties. The evidence adduced by '. the Employer shows that the differences between a
Correctional Officer's role in 1984 as opposed to the early
1970's are very few:
Mr. Turner also presented the Board with evidence to
show his capability to undertake the role of a Correctional
Officer at this time. He recounted two incidents when he
foiled escape attempts by inmates whom he found in his area.
He also advised the. Board of an incident wherein he saved a
young inmate who was attempting to commit suicide. In
addition, Mr. Turner explained ,that by virtue of his role as
a Steam Plant Engineer, he has charge of inmate assistants in
the',plant. So he is used to the role of supervising inmates.
It is clear that Mr. Turner is very concerned about
the long-term effects of red-circling upon his career.
During the currency of the collective agreement that was in
force in May, 1984, Mr. Turner would suffer no effects by the
red-circling. However, by having his status changed from a
Steam Plant Engineer III to a Steam Plant Engineer II, his
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classification has changed for purposes of future contracts.
He estimates that this will make him lose one. dollar an hour
or two thousand dollars a year. Being age 51 at this point,
and assuming that he works till age 65, Mr. Turner estimates
he would lose approximately twenty-eight thousand dollars
over the next fourteen years.
The Board had the benefit of hearing the evidence of
Mr. Ted Anthony. He is the Regional Personnel Administra~tor
for the Ministry. Part of his responsibilities are to draft
and evaluate "Position Specifications and Class Allocations"
which are the forms designed to summarize the duties and
responsibilities of particular jobs for purposes of
determining class allocations in the salary grids for the
collective agreement. In March 1984 Mr. Anthony was filling
in for the person, who would normally have been in charge of
the evaluation in the Guelph region. The task of redrafting
the'position specification for the Steam Plant Engineer,fell
to Mr. Anthony. The position specifications both,prior to
and after the conversion of the steam plant were filed. These
show the change in the class title from an Engineer III to a
II. As Mr. Anthony understood, the change from the positions
resulting from, the refitting was simply that the original
supervisory duties over the Assistant Shift Engineer were
removed. Mr. Anthony agrees'that the change in thermal~power
rating of the plant did not affect the duties of the Steam
Plant Engineers. The forms draEted by Mr. Anthony show a
change from spending 90 per cent of the time in the operation
of the plant including assigning and checking the work of one
stationary engineer to an allocaion of 70 per cent of time
spent on operation with no supervisory duties over an
Assistant Stationary Engineer. Performing of "related
duties" changed from 10 per cent to 30 per cent. However,
Mr. Anthony admits that he did not have any knowledge of how
much time had previously been spent on supervision and he was
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frank in admitting that he did not give any weight to any
actual change in supervisory duties when he drafted the
document. These admissions must be read in the context of
the Employer's classification standards regarding Steam Plant
Engineers which contain in th~eir preamble the following
paragraph:
c “.
Allocation of a particular position ~to the correct series and to the appropriate level within the series is dependent upon (a) the total therm hour rating of the
plant, and (b) the level of responsibilities assigned to the incumbent.
[emphasis added]
by Les
Further evidence submitted by the employer was given
lie Gunnis. She is the Supervisor of Personnel Records
for the.Ministry. Her review of files indicates that there
were no vacancies for Steam Plant Engineer III's in the
Ministry in May, 1984.
Finally, the Employer called William Taylor, the
Superintendent of the Guelph Correctional Centre. He
explained again the purpose of reclassifying the plant and
the impact that this had on the personnel. He gave extens
evidence regarding the responsibilities of Correctional
Officer III's at Guelph at present and the duties of
ve
/' / '. _
Correctional Officers during the early 1970's. The thrust of
his evidence is that the duties of a Correctional Officer in
the early 70's as compared to the positions now known~as
C.O. II and C.O. III are ve.ry similar. He also testified
that the Ministry and the Centre, tried to best protect the
personnel affected.by the refitting of the plant and that all
employees were treated fairly and properly wider the
collective agreement. He says he knew that this may result
in red-circling. He admits, “No one will want to be
red-circled" but he believes that there were no "like
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positions ava ilable" for the griever in the area. Thus,
red-circling .was the only alternative.
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The Argument
Counsel for the grievor submitted that Mr..Turner
ought not to have been demoted.or reclassified at all. It
was submitted that, given the circumstances, the grievor
should still be classed as a Steam Plant Engineer III because.
the Employer's basis for the demotion was incorrect. It was
said that the'grievor's job has not changed as a result of
the refitting and if anything,,,has gotten more onerous due to
the fact that the assistant is no longer there to help out.
Countering the Employer's suggestion that a significant
factor in the change of duties is the present loss of
supervisory function over the assistant, it was submitted
that there was very little supervision before and that there
.is supervision now over the maintenance mechanics. It was
submitted that Mr; Anthony'.s evaluation process of the job
position was flawed in that.he neverturned his mind to the
amount of time spent supervising and therefore had no proper
way of assessing whether, or to what extent, the change in
supervisory duties had.actually occurred. Thus, according to
the Employer's own standards, a proper assessment of the new
position had not been made. Aside form that, a change in the
thermal hour rating is not sufficient to'merit a change in
class standards according to the Employer's own evidence.
Thus, it was submitted that the Employer's.decisioncan only
be'corisidered to be based on thermal hour rating and thus the
decision ought to be struck down.
.' Alternatively, it was submitted on behalf of
Mr. Turner that he is entitled to a lateral transfer to the
position of Correctional Officer III because. that would be?
the "nearest and best possible choice under the
circumstances" to protect his rights under the collective
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agreement. That position has the closest similarity and
rates of pay as the griever's position and is a position that
he is qualified to perform. It was submitted that
Article 5.3.2 entitles the grievor in the case of
reorganization or reassignment.of duties "to be appointed to
the first vacant position in his former class that occurs in
the same administrative district or unit." It was argued.
that "former class" can refer to any classification that the
grievor has previously held which would include the
Correctional Officer position he held in the early 1970's.
Therefore, he is entiled to be offered a ,job in the
Correctional Officer classification without having to bid for
such a position. It was argued that the Employer erred in
giving no thought or consideration to putting him into a
position such as this.
On behalf of the Employer, it wassubmitted that
Mr. Turner was treated in accordance with Articles 5.7 and
5.1 of the collective agreement. Because his duties changed
resulting from the.reorganization , the'~Employer was entitled
to have his classification changed. The grievor was then
given the.benefit of the red-circling provisions under the
collective agreement. Further, it was submitted that
Mr. Turner is not entitled to a Correctional Officer III
position because Article 5.3.2 would only entitle him to the
~first vacant position in his immediate former classification
which was that of a Steam Plant Engineer III., However, since
there. were no~such openings, the employer.cannot be faulted
for failing to provide such a position to the griever.
Further, Article 24.6.1(d) was cited as an example of how the
parties have been able in the language of the collective
agreement to clearly give employees rights to obtain any jobs
in class seriesthat they have previously held as opposed to
the restrictive language of Artic,le 5.3.2 which only refers
to "former" classifications.,
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The Decision
The relevant~portions of the collective agreement are
as follows:
ARTICLE 5 - CLASSIFICATION PROCEDURE
. . .
5.3.1 Where the duties of an employee
are changed 'as a result of re-organization or reassignment of duties and the position is reclassified to a class with a lower maximum salary, an employee who occupies the position when the reclassification is'made is entitled to salary progression based on merit to the maximum salary of the higher classi- fication including any revi~sion
of the maximum salary of the higher classification that takes
effect during the salary cycle in which the reclassification takes place.
5.3.2 An employee to whom the above section applies is entitled to be appointed to the first vacant position in his former class that
occurs in the same administrative district or unit, institution or other work area in the same ministry in which he was employed at the time the reclassification
was made.
5.4 Where a position is reassessed Andy is reclassified to a class within a lower maximum salary, any employee who occupies the position at the time of the reclassification shall continue
to be entitled to salary progression based on merit to the maximum salary of a higher classification that takes effect during the salary cycle in which the reclassification takes place.
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ARTICLE 24 - JOB SECURITY
24.6.1 An employee who has completed his probationary period and who is
subject to lay-off as a surplus employee, shall have the right to
displace an employee who shall be identified~ by the Employer in the following manner and sequence:
. . .
(d) Notwithstanding the
above, in. the event
that there are one or
more employees in one or more classes in j another class series in which the surplus employee has served during his current length of continuous service who have less
seniority than the surplus employee, the surplus employee will displace the employee
with~the least seniority in the class with the highest salary
ma~ximum (no greater. .than the current salary maximum of the surplus employee's class) and provided that the surplus employee has greater seniority than
the displaced employee
hereunder, provided
that such employee is in the same ministr 7 * and within a fortv 40) kilometre radius bf the
headquarters of the
surplus employee and provided that the surplus employee is qualified to perform
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the work of such employee.
We shall deal first.with the grievor's alternative
argument as to.whether he is entitled to be 'placed in a
position as Correctional~Officer as a result of the
reorganization and refitting of, the steam plant. The basis
~of this argument is that Article 5.3.2 entitles ,an employee
who may be adversely affected by the reorganiza.tion to be
appointed to the ~first vacant position in his" former class
c : that occurs in the same.administrative district or unit."
According to the grievor , this would mean that he is entitled
to be placed into any classification that he had ever held
with the Ministry: We cannot accept that proposition.
First, if we were to accept it, it would not be of any
particular benefit to this grievor or his fellow union
members. The implications of the argument are that the
Employer could put employees who were affected,by
reorganization or reassignment of duties into any position
they had previously held. Thus, an employee who had
progressed through the classification ranks over a number of
ye,ars and gained the benefits and compensation of a highly
!' classified job, would be in jeopardy of being appointed to
\ "the first vacant position" that occurred in a job that he \
had held years earlier. This would put him at risk of being
reclassified into a much lower paying position without any
recourse. Surely, Article 5.3.2 was not intended to allow
that. The best argument that confirms this view is a
comparison of Article 5.3.2 to Article 24.6.1(d). The latter
article clearly gives rights to an employee with regard to
other classifications he has held during his continuous
service with the Employer. When this is read in conjunction
with Article 5.3.2, it must be concluded that "former class"
must refer to the position held immediately prior to the
reclassification triggered by Article 5.3.1. Therefore, eve~n
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though Mr. Turner may well be qualified to assume the duties L
of a Correctional Officer at this time, the mere ~fact that he.
previously held that position does not entitle him to be
placed in the first vacant position of Correctional Officer
that arises.
-The parties' primary argument dealt with the
propriety of the reclassification of Mr. Turner's job itself.
There is no question, that .the ,Employer has the right to
reclassify the job especially under. the circumstances of, the
refitting of the plant. :Thus, given the undisputed fact that
.the steam plant was refitted and that staff had to be
reorganized, the Employer had the right to set about the
reclassification of the employees who remained in the plant,
including the griever.
However, as mentioned above, the Employer's
classification standards set out the considerations that must
be'~taken into account in setting out classifications. With
regard to the position of the Steam Plant Engineer, the
determination of the correct series and level within the
series of job'classes is dependent on two things. One is the
total therm hour rating of the plant. The second is the
level of responsibility assigned to the person.
It is undisputed that the therm hour rating of the
plant changed as a result of the refitting and that this
change affected the class of Stationary Engineer that was
required~ under the Operating Engineers Act to be, present in
the plant. It.was this factor, and this factor alone, that
Mr. Anthony took into account when he reclassified the job.
However, by Mr. Anthony's ownadmission, while he was aware
of some removal of supervisory duties, be never turned his
mind to the amount of time spent on supervision before and
after the refitting of the plant. fin fact, he had no
information or.way*of assessing the difference in the amount
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of supervision. Yet, while the job specifications show a
change in the percentage of time spent resulting from the
loss of supervisory duties, Mr. Anthony acknowledes that he
did not know how much supervision had taken place before or
after the refitting.
Because the employer's classification standards
require that a position is classed based on both the number
of therm hours in the plant and the level of responsibility,
it is cruciai to a proper ,job'evaluation that an active
assessment be done oft the responsibilities assigned to the
position. Applying that to the case at hand, it would be
crucial for a proper assessment to have compared the level of
supervisory responsibilities,both before and wafter the
refitting. Mr. Anthony's failure to do so ins a fundamental
flaw in the evaluation of the job and the classification.
That, together with the rest of the evidence presented by
both~ parties, leaves the Board with a lack of evidence
regarding comparabiliy of the supervisory level as of May,
1984. Therefore, we must conclude that the flaw in the
evaluation process renders the reclassification of the '~
griever's job from Steam Plant Engineer III to Steam Plant
Engineer II improper and inoperative in May, 1984.
On the other hand, the Board did have the ben~efit of
the evidence of the parties with regard to the duties of the
grievor as of the dates of the hearing. That evidence
establishes that while the grievor .did have some minor
supervisory duties over the Stationary.Engineer, prior to the
conversion, those supervisory duties have evaporated. While
at present there is some assistance from a Maintenance
Engineer, there is little or no evidence of any super~visory
duties that remain. This must be considered as a significant
change in the level of responsibilities that was assigned to
the grievor. To put matters in a different way, while
Mr. Anthony may not have had the benefit of any real
information regarding the level .of respons.bilities of
Mr. Turner in 1984, this Board has had the benefit of the
evidence and the factors that Mr. Anthony ought to have
considered.
On the basis of the above, we conclude that the
Employer's reclassification of the grievor's job must be set
aside as of May, 1984 as a result of the failure to apply the'
class standard evaluation of the Ministry. However, on the
basis of the evidence presented, the Board is further able to
conclude that, as of the date of this award, it is proper to
classify the grievor as a Steam Plant Engineer II given the
level of responsibilities and the therm hour rating of the
steam plant 'he operates. Therefore, hit is the award of this
Board that the grievor should be considered to have been
reclassified to the position of Steam Plant Engineer II as of
the date of this Award.
DATED at Toronto this 3rd day of March 1986.
Paula Knopf Chairman
P. ~Craven
Member