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HomeMy WebLinkAbout1985-0675.Boyle et al.87-08-120675185 IN THE MATTEX OF AN ARBITRATION UNDER .THE CEONN RMPLOYRES COLL.FXTIVR BARMINING ACT BEFORE TRR GRIEVANCE SETlLEMRNT BOARD OPSEU (Boyle et al) - and - THE CRONN IN RIGHT OF ONTARIO (Ministry of Transportation and Communications) Griever Employer BEFORE: FOR THE GRIEVOR: FOR THE EMPLOYER: HEARINGS: G. Brandt Vice-Chairman I. Freedman Member A. Stapleton Umber P. Sheppard Counsel Barrister and Solicitor M. B. Furanna Staff Relations Advisor Ministry of~Transportation and Communications July 17, 1986 October 7. 1986 November 25, 1986 February 2, 1987 thy a, 1987 The grievas were.~in the summer of 1985. ah classified as Renewal Processing Clerks in the Ministry of Transportation and Communications and were employed in the Renewal Processing Section of the Ministry located in Kiqston, Ontario. At that time the position was classified as Cferk 3 General and the grieves. 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 d Renewal Processing Clerk was created in April of 1983 when the performance of certain function3 within-the Mjnistry was re- orsanhzd and shifted to Kingston. Prior to this time there were 2 units of the Mnistry, located at the Head OtTice in Downsview. which pro&ssed driver license renewals and vehicle renewals respectively. Employee3 in ‘. those units also dealt with tnquiries from metttbers of public. It was decided to rationalize these function3 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 de&ion to de-centralize the operation3 of the Ministry. Consequently, the “production” unit was moved to Kingston. Another impcrtant 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 dfice by the end d February in each year. It was decided to change the process for vehide renewal registration to one which could be done by mail and which ~ .’ 2 was staggered aaxxdlng lo the bIrthdale of the reglslranl. Further more, 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 renewal% correspondence that was nea?$sary in connection with’renewals and certain “cashiering” functions concerned with the a&clion and depositins of money. Prior lo the creation of this position the various duties were assigned lo 2 separate jobs. There was a Censoring Clerk General, classified as Clerk 2 .General, and a Cashier Clerk, classified as’s Clerk 3 General. When the various duties were amalgamated and some new duties added the position of Renewal Processing Clerk was created and classified at lhe Uerk 3 level. The 8rlevancearises as a result of the fact thal, begins&M in May of 1983. a number of funclions came to be added lo the job with the result that, by early 1985. the incumbenls in the position began lo seek a re- classification ob their position. Before setlin!$ out the details of how the job .came lo be changed it is useful al this slage lo set out the various attempts which were ,made and steps taken lo have the matter resolved prior to the fillag of the grievance. Some employees spoke lo one of the supervisors. Mr. Azim Khan, in early 1985 al which time the undertook to writes up a revised position description which would reflect the new ,duties. A revised position description was drafted and first submitted for reclassification in January or February of 1985. The Raslern Re@n Personnel office of the Ministry confirmed the classification at the Uerk 3 General leve!. The slatT were not satisfied with that &d another position description was submitted in April of 1985 to Head CMCce where the Clerk 3 General classification was again i;. :,‘, !:. 3 confirmed. 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 2Sth 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 lot the purposes of classification. Although the evidence is not clear it appears that sometime after the classification d the job was amfirmed by Head Office. Mr. Killian prepared another job deaription which was desig!ied to address the complaints of the employees amceming the extent to which the job descfiption,accurately described their duties. Mr. KiUian did not regard this revised job desaiption as adding anything to that which was in the earlier one which had formed the basis for the classification. Rather in his view it.‘Wrded it better”. In any event that revised description had no impact. It.was sent to Mr. Cfonkwright at the Regional Personnel tIMTic& who advised that the rewording would make no difference to the proper classification of the job.~ The grievances were filed on yarious dates between June 19th and July 3rd of 198s. On August 22. 1985 the grievorq 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 conlirmed that some, though not all cf 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 desaiption where the job contained a mix of duties (some of which were Clerk 3 and some Clerk 4) Mr. Calderone advised that he Was go&g to re-design the position. Thus, those duties which aDDeared to be Clerk 4 duties along with some new Ones not done before were to be put into a new position called Senior Renewal Recessing Clerk. -4 The rest of the duties would remain with the existing Renewal Recessing Clerk position. , On September 23,198s the Senior Renewal Clerk position was classified as Clerk 4 General. On November 18, 1985 the Renewal Processing Clerk position was re-classified and remained al the Uerk 3 level. In October of 1985 the Senior Renewal Processing Uerk position was pasted and 6 vacancies were fied. Some of the successful applicafits were grievers 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 Boor Resolve functions), MRS functions and runctions in relation to stock ahoration. :. Rior to January of 1984 these various functions were performed exclusively by individual employees, that is, one employee would be engaged exdusively in cashiering, another exclusively in IRD fun&ms etc. However. begin&? in January of 1984, the Ministry embarked upon a rotation system under which employees wouid, after a short period of training, work in one function for a period of two and one halt 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 actuaily conducted by feilow employees who were familiar with the job although it was generally supervised by supervisory staff. Mr. Killian stated that his purpose in instituting this plan was to have a work force that wasbroadly capable oC performing all of the various functions required~ to be done thereby providing management with some flexibility in assigning people to various functions as and when necessary. ‘5 In addition he saw this as a means d enriching the .job cough providing a. vtilety d tasks to be done. By the date of the grievances in June of 1985 approximately 9s per cent d the staff had been trained on and were expected by Mr. Killian and me supervisory staff to be able to undertake all of the various functions that were required to be performed. We now pass to a more detailed consideration of the particul~. functions performed in this postion. The censoring function involves a processing of the applications for renewal of drivers licenses. The clerk checks to see that the questions on the application form are all anstiered, that the application is signed. and that the cheque or money order enclosed is made out in m right amount. If tE& form is incomplete or if it indicates that there has been same change in circumstances, eg. that .the applicant now wears glasses, the censoring clerk does not process it. More infofmation may be required from the gpplicani 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 CenscKing except that it applies to the annual application for renewal of the vehicle license. An Invitationlo 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. Hciwever, if they are mailed in they come to the Kingston Office and are processed by the grievors. 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 become? necessary to access a.computer terminal in order to register the vhide on line and make sure that any necessary changes or corrections are recorded on the computer. Once these transactions are completed a Valtag or validation sticker is issued and sent to, the applicant for’ attachment to the plate. There was considerable evidence, some of it conflicting. with respect to the various functions that are performed in respect of correct& or updating Information on Ilne. This is referred to as the error resolve function although it is grouped generically under the IRD function. Some of the typesof 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 1 changes where the IRD indicates that the vehicle is wrongly numbered. These appear to have been done from 1983 when the system for vehicle renewals was cbnnged. The cashiering function Involved the balancing of applications ior 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 services1 walking the deposit (mostly In chequesl to the bank. The an-respondence function involved corresponding with members of the public whose renewal application was In some way defective and which required the furnishing of further information before it could be processed. ThIswas done by means of various form letters each of which is designed for a specitii purpose. Two other.functions should be referred to at the this point. In 1983 the Ministry introduced the Management Reporting System (MRS) which required that censoring clerks had to keep records of the kinds and numbers :. 7 d transactions that they processed and the amount of lime spent on each d the 4 functions described above. Mr. Killian estimated Lhat. once the clerks were trained in the 4 functions, this reaxding 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 distribulion of controlled stock, eg. valtags. When supplies ran low she made out the order, which had to be InitIaIIed by a supervisor. Distribution of stock to the censoring clerks was done wilhout any supervision. A part ol 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 Uerk as d July/August 1985. However, as noted above: InAugust it was decided to re-design the allocation of functions and to splI1 the job into two positions the senior of which would perfarm those functions which warranted~a 4 level classification. At that timet although this is a matter d Pispute some “new” functions were added to the posiLion. According to Mr. Killlan these were autliourlzlng 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 reference to 9upervi9or3. It was Mr. Killian’s evidence that. prior to the solIt, these CunctIons were no1 perIormed by the Renewal Processing Uerk and that they were under general supervision and expected to fotlow prescribed guidelines In carrylng out their functions. The evidence with respect to the degree of supervision of the clerks’ before and after the split is in conflict. Generally it was the evidence d the grievers who tegified 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 liltle in the way of direct and close day to day ;:/ i’ _ supervisionover how they carried out their duties. As for the supposedti “new” duties added to the job the evidence of Mrs. Gibson, one of the grievers (and one who wps successfir la Lhe competition for the Seniti position) stated 1haL 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 befor6 the jobwas olTicIaIly split in October, and that RIN merges were nothing new. 9 The Union submitted that based on an examination of the duties against the dass 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 qcceed on the basis 19 the class usage approach, vi& that the duties performed by the grievors were substantially identical to those of tar0 other positions, each of which has been classified as Clerk ;. General. Those two positions were that of Own Choice Plate &rk and Record Audit Clerk. The on& 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 Cler~k. and one d the grievers. Her evidence would indicate that many d the functions performed by the RenewaI Processing flerk were direztiy comparable with those performed id the other jobs. We do not intend to set out her evidence in any detail. Ms. Ear1 has never performed either of the two j&s 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 entireIy on a readingaf 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 RenewaI Recessing CIerk. If this case and the history of the attempts made by the grievars 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 cwdusive ac&nt of the actual duties performed in’ the job. Were that the case classification ca3e3 would, mercifully, be far less lengthy than they are. 10 It would be simpty a matter of fiIIng the position description with the dass standards and amducting a comparison It is our respectful opinion that the Union has simply not put before us sufficient evidence to permit us to appiy the class usage approach. At the very least it ought to have called as a witness someone who had either performed in the positions in questions or who had greater famiharity~with the positions than that which could be gleaned from an examination of the position desaiption. Consequently. tie 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 dass standards approach, the grievers should have been classified’ at the 4 level For ieasons which follow it is unnecessary for us either to set out the Qass Standtids or to enter into the usual detailed comp~aris& of the duties against the .dass definition. It may be recaIIed that begin&g in January of 1984~ the Ministry began & kquire the Renewal Rapssing CIerks. who until that point had .’ been engaged exdusively in either oensoring driver renewa& processing vehide renewals (IRDs). cashiering. or c&respondence functions, to become qualified to perform alI four of them. To that end a rotational system was _ establIshed and the Renewal Processing Clerks were aII trained in ail of the functiona. That period of training was td &I intents and purposes completed by June of 1985. I Thus, as of June of 1985. the Renewal Recessing Clerks were all quaiified to perform aii of the Clerk 4 functions and could be called upon by their employer to perform aII of them. That calI could require them to rotate betweem the functions or it could involve an asGgnment to a Specific 11 ’ function. It should be recalled that one d the reasons far in$tItutIng the system was to give managemenl greater flexibiIity in assigning duties to members of the SM. When the job wqs split In October ?f 1985 some of t&duties became level 4 and some remained at level 3 in the dassification scheme. At the risk of some oversimpIIfication it can be stated that the cashiering and error- resoIve 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 fuixLion3) changed between early January of 1984 and October al 198s when the job was split. It bUows from l&is that. for substantial periods of time from. January 1984 on thq grievers, and the rest aC the Renewal Recessing Clerks, have been performing functions which arti 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 differenl in nature then than they. were before the split. Does the fact that the grievers ware performIng some level 4 functions from early January , 1984 on justify a re-~assification of the position as a whole. What about the fact that they were also performing functions which dearIy are level 3 functions? Is it nea&ry 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 ln the fact that, while it may be the case that some (d the grievors might a&aIIy only be paforming level 3 functions, they could at any time be called upon by their employer to perform level 4 functions. 12 The evidence as to what the actual asstiments were bears this out. Lynn Gibson performed~the cashiering functions without interrupt&for “a good year” atarlinfj In late 1983. Laurie Gow worked on error resolve prior to January 1.1984 when the rotation started, on IRDs (part of the duties in relation to which became Uerk 4 functionsj 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 Uerk 4 duties. Leah Brown did errcf resolve from January to August 1984 and cashiering from April 198s to August 1985. From August 1984 to April 1985 she was assigned to the correspondence function (Uerk 3) but stated that during that time she was frequently calIed on to do IRDs and error resoIve. She aIq6performed some cashiering fuqztions during this Period up to the.Ume that the move from Queen Street to Counter Street was . completed in JaMry of 1985. It was her estimate that she performed Clerk 4 duti& for IS out of the 20 months between January 1984 and August. 1985. It Is, in our opinion. dear that these 3 employees. having regard to the duties which they actually performed from Januaq 1.1984 to the time that the job was split. were performing as a Clerk 4. However, we do not stop at baaing our conclusion on what the actupl assignment may have .been. Indeed that would be ludicrous foi employees would be switching In and out of different dassif~cations depending on which part of the rotation they were on. Rather, for the purposes of determ&ng whether or not the grievers should be classified as Clerk 4, we think it is sufficient that the employer can catI upon a clerk to perform level 4 functions and extWt the employee to measure UP to the standard expected of that higher levei~of classification. 13 To adopt what might be an inept analogy: a fireman remains a firem= even though he is not called on to put out fires. If he is at the call of _I 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 calIed upon by their employer to perform them properly. The extent to which they may have actuaIly been called upon to perform them is. in our opinion, not relevant to the question of the dassification of their positions. We therefore have come to~the amdusion that the grievances should succeed. The remedy in this case is one d an award of compensation rather than an order directing that the grievers be re-da&tied. The reason for that is Lhat, as d January 1.1986 a new dassirication system (OAG) has come into existence and any reclassification that we might order could only be effective to December 3 1. 198s. Therefore. monetary compensation is the appropriate relief. However. there remains an issue as to the CalculaUon of t&period of time in respect of which that compensation should be paid.~ The parties are In dispute both as to the appropriate start& and finI3hing point d 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. 198s. 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 reNlt of the rotational scheme all of the Renewal. Recessing Perks were 14 either performing or In a position in which they could be called upon to .berform CIerk 4 bcti~s. 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 starting point counsel for the Union presenled a number of merent alternatives. First, it was suggested compensation might be ordered retroactive to April 25. .1983. the date that the Renewal Recessing Clerk 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. Rqually we 3ee no reason why compensation should be paid in respect of a period of time prior to the start d the rotation period. 11 Secondly. it was suggested that compensation date back to January 1, 1984. the start d the rotation period, or. failing that, July 24, 1984 when. according to the minutes d a staff meeting held gn that day. it is made dear : that management was requiring that “All Renewal RocessIng Clerks must be fully~knowiedgeabie on the four main functions, i.e. cem&ng cashiering, MD’s and correspondence.” Thirdly. it was suggested that compensation might date back to April 19. 1985 when the revised position specification was classified as Clerk.3 gene& Finally, it was suggested that compensation might be retroaclive to 20 days prior to the IIllng of the grievance consistently with other awards of this Board dealing with amtinuing grievanoss such as that which we have before us. Having regard to the basis which underlies our reasoning in support of the grievance9 the most logical time from which compensation ought to run . 15 would be the begin&@ of the rotation period. That is the time when alI employees became liable to be called upon to perform what were later ackxuWedged to be Clerk 4 functions. However, as of this point many of the employees had not petfarmed nor been trained on those functkms. 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 dale would be July 24.1984 when the Ministry did expect that allthe derks be Tully knowledgeable” on all of the four main functkms. However, to choose that date tiouid be to ignore that hne of case? 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 d conduct which can be the subject of a grievance at ‘any time, i.e. a c&tinuing 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 d invoking the grievance procedure and having recourse to the Grievance Settlement hoard. A rigid application of the “20 day rule” would discourage employees from attempting throughless formal means to settle their dispute. ‘It would be far more desirable to grieve and “lock in” a fixed date which would become the basis for determifting compensation in the event of 9uaz9s. In the instant case the employees began to have some concerns in early 1985 about their dassification. They had-known since July 1984 that 16 they were responsible for aII of the CuncUons ahhough not aII of them had been trained at that lime. Ety the end of I984 training had virtuaIIy been oompleled on aII of the functions. In earIy 198s attempts were made to have the position reclassified by rewriting the POSitiOn Specilicatioa in a way which whld more’accurateIy reflect the job as it changed and submitting it lo Personnel for dassificalion. Those efforts were wsuccesdul but they should be appLauded. CIassIficalion dliCer9 are far acre competent than we are to dassify jobs and lo lhe extent lhat classification disputes can be resoIved by lhose most cOrnpatent to do so the parties should not be discouraged from seeking relief through such i&rmaI means. Thus, we do not believe it appropriate lo apply lhe 20 day rule where informril efforts have been made to achieve a setUement of a dispute short of recourse to arbitralkm. Those efforts should.be encouraged. and, In the event that lhey are not successful in achieving sellIement and it becomes necessary to grieve, such reIief as might be awarded by lhe Grievance Settlamenl Board should be retroactive to the point where steps were first taken lo Settle the grievance informally. .We have no precise evidence before us as lo exactly when those steps occurred except that they were taken in earty 1985. Consequently. we can do no more than issue our award ingeneral terms, thal is. lhat lhe Employer is obbged, lo compensate lhe grievers In respect of the difIerence between their rate and the Uerk 4 rate for a period from ‘Yearly 1985” to November 13.198S. In the event that the parties cannot reach agreement on precisely when in “early 1985” those efforts were made lo obtain reclassification, lhe B&UP can reconvene lo resoIve lhe mat&r. The Board remains seised al jurisdiction in respect d any problems which may arise out d the implement&Ion d this award. I ~: :.. .~ $ DATED at LONDON, Ontario this 12th day of August, 1987. 17 >.: G. Brandt Vice-chairman I. Freedman A. Stapleton Member . _ i‘ 17 . DATED’at LONDON, Ontario this 12th day of August, 1987. G. Brandt Vice-Chairman I. Freedman Member A. Stapleton Member : .