Loading...
HomeMy WebLinkAbout1985-0782.Davis.86-10-31IN'THE MATTER OF AN ARBITRATION - Under - THE CROW El4PLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Leonard Davis) - and - Grievor The Crown in Right of Ontario (The Ministry of the Solicitor General) Employer P. Knopf, Vice-Chairman I. Freedman, Member W.A. Lobraico, Member For the Griever: Ci Paliare, Counsel Gowling and Henderson Barristers and Solicitorss For the Employer: R. 1tenson Senior Staff Relations Officer Staff .Relations Branch Management Board of Cabinet C. Truman Chief Classification Officer Personnel Services Ministry of the Solicitor General Hearing: August 8, 1986 . . AWARD This case involves a claim by the grievor that he has been improperly classified. The grievor, Mr. Leonard Davis, is an offset printer. He is employed by the Ministry of the Solicitor General at its printing plant located in the .’ Ontarip Police College in Aylmer. Mr. Davis is classified as an “Operator 3, Offset Equipment”. He alleges that his job duties and functions are of such a nature that he should more properly be classified as an Operator 4. In the al tema tive, it is alleged that even if his duties do not fit within the Operator 4 classification, the job ought to be reclassified. in a manner that recognizes the differences between Mr. Davis’ duties and that of an Operator 3. In accordance, with the onus, in cases such’ as this, the Union led evidence. ,The Union’s sole witness was Mr. Davis. Mr. Davis explained that he had been a’printer since 1975 and has always worked at the Ontario Police College in Aylmer. Mr. Davis explained that in the last eleven years, there have been significant changes in .’ development qf the equipment used and efficiency in the printing shop. Because of the new equipment, he estimated that theirvolume of production has increased by close to 100 per cent. However, ten or eleven years ago there were three staff peop’le in the printing shop, one of whom was par t-time., Now, there are still three staff members despite the increase in volume. Mr. Davis described his job duties and responsibilites as taking on ” the complete supervision’ of the :print shop.” In addition to operatihg and using every piece of equipment in the shop, Mr. Davis is responsible for supervising the employees, the machinery, the purchasing, the assigning of. duties, and the requesting of tenders for raw materials and equipment.’ Mr. Davis has no supervisor himselE ! with respect to the print shop despite the fact that there is . ‘I . -2- ! a supervisor or general manager of support services for the College by the name of Mr. Bahr. Mr. Bahr offers no supervision over the print shop in terms of the printing. ,- (, From the evidence of Mr. Davis, it is clear that the print shop is a very busy location. It produces books and pamphlets which instructors use in the training of poli,cc officers and law enforcement personnel for public employment in Ontario and elsewhere. In add i tion , all examinations and tests are printed there. Work is also done for the Ontario Police Commission by way of a news letter which is put out quarterly. Also, printing is done for the teaching material for the Ministry of Correctional Services. The griever’s duties also include responsibility for maintaining invcn tory and ordering materials. He seems to have the power of effective recommenda~tion over which bid to accept when tenders are elicited. The grievor gave extensive and articulate testimony explaining the equipment utilized in the shop and comparing it to the equipment in place when he began a; an offset prin tqr. Suffice it to say in a general sense that the testimony clearly established that the acquisition of the new equipment, most of which has been put in place in the last .._~~ five years, has resulted in a very significant increase in the efficiency of the plant and its ability to produce a wider variety and higher volume of materials. I One aspect of the Union’s case gave rise to an evidentiary issue that ultimately became the main issue in dispute i,n this case. Mr. Davis tendered through his counsel, two documents. One is entitled “Operator 3, Offset Equ ipmen t” and the other is entitled “Operator 4, Offset Equ ipmen t” . Both documents bear the date April 1964 and the sub- ti tles “Class Definition” and “Qualifications”. Counsel ,’ . - 3 - for the Union sought to enter these documents during his opening statement as the applicable job standards. The Employer objected, taking the position that the two documents should not go in alone and instead, the entire Operator series, including the preamble from the Ministry's Manual should be introduced altogether. Counsel for the Union .indicated that he would not consent to the introduction of the entire series and the preamble because they would be irrelevant to the issue before the Board. Because there was no agreement between the Union and the Ministry at the outset of the case, the Board advised that each party could tender whatever documents they desired through their witnesses as they presented their cases and the Board would rule on their admissibility as the issues arose. Accordingly, the Union sought to enter the same documents entitled "Operator 3, Offset Equipment" and "Operator 4, Offset Equipment" through Mr. Davis. He testified that he had discovered the documents in his desk when he was classified .or appointed to the position of Operator 3. He understood the "Operator 3" document to be the document "that was supposed to have. been my duties or my position." He says that when he saw the Operator 4 dxocument, he thought that it was a more accurate reflection of what work he actually did. On the basis of Mr. Davis' ability to identify the documents as relating to his duties and responsibilities, the Board accepted the documents as evidence. OPERATOR 3, OFFSET EQUIPMENT This class covers positions of highly skilled operators of standard size offset presses who, under the technical supervision of a printing unit supervisor, or the general supervisionof a clerical supervisor, produces a variety of printed material by offset lithog~raphy. At this level employees specialize in the most difficult printing jobs, where the work must meet rigid standards and include the application of colour separation techniques. I.. -_ - 4 - ~1~0 included are the positions of operators of extra-large and complex offset presses, such as the Commander 24” model, where the operating adjustments are~both numerous and critical. These adjustments involve the careful use of micrometers and feeler gauges, taking into account such factors as temperature and humidity. A high degree of care and accuracy in such operations as mixing inks and fountain solutions, adjusting tension at pressure points, and regulating. the flow of ink and paper is essential for the produc’tion of satisfactory copy. The operators clean and recover rollers, clean, polish.and oil the ,machine regularly, make minor repairs and replace parts, and report major mechanical problems to the supervisor. This class also covers positions of employees in charge of small offset units who supervise two or three operators scheduling, assigning and checking work, keeping records of work done, material used, arranging for purchase of replacement parts of major repairs. They operate equipment themselves, usually for the more difficult jobs. QUALIFICATIONS: 1. Grade 10 education, or grade 8 plus equiva1e.n t combination of education and experience. 2. At lea&t three years’ experience operating offset equipment. 3. MechanicaS aptitude, manual dexterity, good knowledge of advanced offset technique. April,’ 1964 OPERATOR 4, OFFSET EWIPMENT This class covers the position of employees who supervise large oEfset printing units oE five to ten operators. These units con&in a number of presses and auxiliary equipment used in the production i. -5- of a wide variety of printed material. Under the general directions of a technical supervisor these employees oversee' the day-to-day operations of the unit. These employees receive orders for print jobs, direct the plate-making necessary, lay out the copy, select the appropriate machines, arrange work schedules and assign the work to subordinates. They ensure that deadlines are met and inspect the work produced for quality. They assist with.machine adjustments as necessary and may operate the equipment themselves for the more difficult jobs. They train or supervise the training of new operators and participate in the hiring of new staff. They are responsible for the morale and discipline of.their subordinates and may make recommendations for promotions, transfer or dismissal. They are responsible for the maintenance and repair of the equipment, for arranging cleaning schedules .and arranging for major repairs when necessary. They requisition new supplies, receive and store them, maintain records of quantities ordered, received and used, and take inventory regularly estimating future requirements. They also requisition spare parts for the equipment and recommend purchase of new equipment when necessary.. QUALIFICATIONS: 1. Grade lO.education, or grade 8 plus equivalent combination of education and experience. 2. At least five years' experience'in operating offset press and auxiliary equipment. 3. A thorough knowledge of offset presses and related equipment, ability to plan and schedule work effectively, good physical condition. April 1964 Counsel for the Union then took Mr. Davis through various functions that made up the class definitions .on the documents for the Operator 3 and the Operator 4. Essentially, it was Mr. Davis’ evidence that the Opera tot 3 class defini tion~ did not accurately reflect his present ,duties and responsibilities. This was so because fh~e Operator 3 is defined as someone who-works "under .the technical supervision of a unit supervisor or the general supervision of a clerical supervisor". As Mr. Davis explained in his earlier testimony, he"dces not work under any such supervision. Further, the Operator 3 class definition outlines a number of pieces of equipment which are now obsolete and are not at: all reflective of the present state of technology in the plant. ,Mr. Davis estimates thha t if he still possessed the same type of equipment that is referred to in the 1364 job definition, he would require six to eight persons to produce the same amount of volume that is now produced. While the Operator 3 class definition is designed to cover positions~~bf"&mployees in charge of small uni~ts who supervise two or three operators, Mr. Davis asked the Board to consider that then modern equipment of the shop described in the 1964 class definition would be a much larger shop with greater responsibility to produce higher volume. Mr. Davis then went through the class definition for the Operator 4 position. T,he opening sentence of the class de~fini tion reads: “This class covers positions of employees wtY0 supervise large offsetprinting units of five to-ten operators." As mentioned above, although Mr. Davis's shop does not have five to tenoperators, he equates it to the same type of shop producing the same type of volume that would have been contemplated in 1964 when the class definition was drawn up. In every other respect, Mr. Davis says that his duties and responsibilities fall squarely within the Operator 4 class definition. - 7 - Sen The Ministry began to introduce evidence through a ior Classification Officer to explain the classification process and how the classification for Mr. Bavis' posi,tion was determined. However, counsel for t;he Union indicated immediately that no objection was taken with regard to the process used by the Ministry. Given that concession, the Ministry elected to call no evidence and moved that the Union had failed to present a prima facie case in the grievance. ,- ( It was argued on behalf of.the Ministry that the onus is upon the grievor to establish that he was i,mproperly classified either by comparing his job against the job standards or to show that he was performing the same duties as someone in another classification. Given that the latter was not the, contention in this case, the Ministry argued that the grievor had failed .to show that he was improperly classified because there was no evidence of the "job standards" before the Board- It was argued that the documen.ts that had been tendered with the titles "Operator 3, Offset Equipment" and "Operator 4, Offset Equipment" with the class definitions had not been proven to be the class standards. Instead, they were only established to have been pieces of‘paper found in the grieyor's deskin 1381. Thus, i it was submi'tted that the Employer had no case to meet and that the grievance ought to,be dismissed. In response, counsel for the Union pointed out that on the two documents in question, a code number.was contained up in the right-hand corner which corresponded in the case of the Operator 3 to the-class code in the position specification which had been filed on the mutual consent of the parties. ,This was said to establish on the face of the document that it is a standard that refers to the griever's classification. Further, it was. said that the documents on their face indicate that they are class standards and that this creates prima facie evidence that the..Board can reiy i -o- upon. Further, the Board was invited,to draw upon its experience in matters such as these and recognize that the documents are in fact the typical class standard documents that are applicable to situations such as this. It was submitted that to find otherwise would be to accede to a strictly technical argument rather than to deal with the merits of the.case. Further, it was ,submitted that when the issue first arose at t!e outset of the hearing, the Ministry had not taken the position that the documents in question were inaccurate,or inappropriate, but instead that they should not be entered alone. Thus, the accuracy and the applicability of the documents ought not to be put in question at the~end of the ?lay after they had been accepted as exhibits. The Board was asked to accept Mr. Davis' evidence as uncontradicted and sufficient to uphold the grievance. With regard to remedy, counsel for the Union submitted that the evidence establishes that the grievor falls into the Operator 4 category and that he ought to be awarded that classification. The Board was invited to conclude that the grievor's duties "best fit" the Operator ~4 definition. We were referred to the following decisions as examples of how the “best fit" approach has been taken by this Board: OPSEU (Arqo) and Crown In Right of Ontario (Min,istry of Transportation and Communications) and OPSEU (Remedeios) and Crown in Right of Ontario (Ministrv'of Attorney General. On the other hand, we are invited to conc,lude that the ~duties and responsibilities fall squarely within the Operator 4 category. Finally, in the alternative it was argued that the Board ought to apply the approach indicated.in the case of OPSEU (Berry:) and Crown in Right of Ontario (Ministry of Community and Social Services) where the Court has recognized that it is within the remedial authority of this Board to require the Employer to create a new classification when the evidence establishes that the existing classifications are not appropriate. i ; ( i “,A ” -9- THE DECISION Dealing first with the evidentiary issue, we do not accept the Ministry’s position that the documents tendered by the Union cannot be accepted as the class standards. We recognize that the Grievance Settlement Board is an adversarial. tribunal where the obligation is upon each party to present its own case and the responsibility of each panel of the Board is to decide each case’ fairly, judiciously and only upon the ‘evidence presented JO it in the context of the hearing. To do otherwise would be a denid of natural justice. However, this Board does not operate in a vacuum. The Board is familiar with and aware of the sys tam of job standards in this sector. The documents tendered by the Union are immediately recognizable as the typical format of a job standards document. Further, the documents tendered, in one case, bear the job class code number appl.icable to the job specification which was accepted as being applicable to the grievor.. Further, while not referring to the document as class standards, the grievor was able to recognize the documents as outlines of the duties expected of him in his classification and in the classification above his current pay rate. Thus, he ‘could recognize the documents in essence. as the applicable class standards to the grievance. Finally, because the Ministry had indicated that the documents ought to be considered incomplete at the outs8 t, but had not argued’ that the documentwas inaccurate or anything other than a job standard, it would be unfair to accept an argument that the document could no longer be treated as such after the Union had closed its case. For all these reasons, we must conclude that the Union had proven the applicable job s tanddrds as part of its case. Having reached that conclusion, the Board mus.J ask i tselE ‘whether the Union’s evidence sd.ti.sfies the onus of proving that the grievor has been improperly classified. - 10 - 1. ~(‘,:- Because the Ministry called no evidence, the grievoc’s evidence was uncon trati ic ted. We may add, that he was a very credible witness who was thoughtful and careful in his answers to questions in examination-in-chief and cross-examination. We have no hesitation in accepting his evidence as being accurate. Ris evidence makes it clear that while he does fit within many of the aspects of the ’ ‘~Ooerator 3 class definition, that standard cannot be .L considered accurate to any large degree for the work that the grievor is no~w doing. The Operator~3 position is clearly one of a highly skilled operator, but applicable to one who works under the supervision of a printi,ng unit supervisor or the clerical supervisor. This simply does not apply to the grievor. Instead, he is ‘the supervisor of the shop and runs the shop that produces a volume equivalent to a plant tha.t would have been staffed by five to ten operators when the job classifications were established in 1964. .‘We must conclude that it would be incorrect to apply the job standards simply~‘on the basis of the number of employees in the shop. To do that, would ignore the dif.ferences in work pressure, responsibilities, and the technical and organizational skills required to produce a high volume of output on a continual,basis. It is our conclusion that the class definition and standards of .the Operator 4 are an accurate description of ,.the griever’s present duties. It recognizes his supervisory role and his function to oversee arid’ participate in the day- to-day operations of the unit. It further recognizes his QOWer and ability to make effective recommendations for promotion , transfer or dismissal. as well as requisitioning supplies and equipment. These characteristics are integral to the griever's present responsibilities and.are absent in .the class deEinition or standards of an Operator 3. . ,, - 11 - For all these reasons, the Board concludes that the grievor, Mr. Davis, has been improperly classif ied, contrary to the collective agreement. The Employer is ordered to reclassify Mr. Davis as an Operator 4, Offset Equipment as of twenty days before the filing OE this grievance. ‘Further, the Employer shall pay to the grievor any retroactive payments due to the grievor as a res~ult of the differential between the wage scales of his old classification and the classification of Operator 4. The Board retains jurisdiction to deal with the implementation of the award should our .’ assistance be required. DATED at Toronto, Ontario, this 31st day of oc’tober, 1986. .-.. ‘.-/&,J&& &J&7&& W. A. Lobraico, Member