HomeMy WebLinkAbout1985-0807.Collins.87-11-26Between: OPSEU (Peter Collins)
Before:
For the Griever:
IN THE MATTER OF AN ARBITRATION
sunder
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
For the Employer:
Hearings:
and
The Crown in Right of~Ontari0
(Ministry of the Solicitor General)
8. Kirkwood
F. Taylor
L. Turtle
Vice Chairman
Member
Member \
N. Luczay
Grievance Officer
Ontario Public Service Employees Union
L. tiorton
Staff Relations Officer
Staff Relations Section
Human Resources Secretariat
Management Board of Cabinet
May 05, 1987
June 10. 1987
Griever
Employer
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DECISION
h. a grievance dated May 29.1985 the griever claims that wages were owing to him under
article 6.1 of the collective agmemcnt for the period during which he was assigned as acting
foreman. At the hearing the griever stated that he had acted in that capacity for approximately five
years but was only seeking compensation for the period between May 1,1984 and approximately
May 14. 1985. The May 1. 1985 date had no particular significance, but May 14, 1985
represented the date on which a foreman WaShid.
The griever ‘s ~Iassification was a m&attic 2, and hc,was employed at the Lakeshore East
Garage, North Location. This garage was responsible for the mpair and maitttenana of all cus for
the Ontario Provincial Police. for handling chauffeur duties, and for handling public relation
vehicles. There was also a garage on the south location which was responsible for the msinttutance
of the police motorcycles.
Mr. Renato Dipietro was employui as a fomman in the garage in the SoUthem bcation Until
1977 at which time he became a manags of the garage whcm the grievor was employed. As th&c
was no foreman at the gricvofs gatage Mr. Dipietto would call upon the gtievor for his assistance.
~~~claimd~whcnhcwas~~upontohelpMr.Dipieoohewascallcduponto~as
a foreman and therefore should be entitled for the wages of that classi&carion.
The gtiev~r testified that when he was acting ‘as foreman he would rcccive vehicles which
had problems or which requited a regular inspection, he would diagnose the problems and,would
delegate the work to a nrchanic. Unlike most of the other nrchanics he was au&ized to prepare
Work on&m. and had authority to rquisition parts. Similarly if a car which was out of town
rcquimd repair he had the authorization to have the vehicle taken to a workshop for repair and to
have the biB forwarded to him for the authorization for payment The griever said that he would
msun that his work was COmplCtcd in a safe and timely manner and that he would also cheek the
work of the other mechanics. When Mr. Dipictro was absent the grievor would step into Mr.
Dipietro’s job and would report to Mr. Dipictro’s boss, Mr. Ken Briggs the Manager of Flat
Services of the Transport Branch. If Mr. Dipictro was absent the gricvor would schedule
vacations for the other mechanics.
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Mr. Dipietro agreed that he would call upon the griever to assist him when he was short of
help. For although he did not have the longest seniority among the mechanics Mr. Dipictro asked
him for his help as he was polite, helpful and he was well liked by the police officers and his
fellow workers. However. he saw the work that~thc griever did from a different pcrspcctive than
the gricvor. He agreed that the grievor did take work orders, answer telephone calls, and
requisition parts; but he was very assertive that it was always he that was responsible for the other
mechanics and not the gtievor. In his view, the gtievor did not check the other mechanics work.
The quality of the other mechanics work was very high and they tended to work well individually.
Mr. Dipietro did recognize that the other mechanics sometimes went to the grievor to discuss
problems with the vehicles or to clarify work orders but this was part of the team approach to
resolving problems. If a mechanic was not performing or had other problems it was Mr. Dipieuo
that talked to the mechanic and not the gtievor. Mr. Dipietrc also stated that when he v& absent
the griever was responsible for the car section although he was not responsible for the
motorcycles.
Ken Briggs said that when Mr. Dipieno was promoted from the foreman of the motorcycles
to the position of manager, no one was hired for the position of foreman as the work on the
motorcycles was declining. There was also no general nor automotive foreman until 1985. The
position of foreman for the north garage arose as the work on the cars was increasing. In addition
to the work required on the cars, the depztment was being required to maintain M.B.R.
(Management By Results) records which were to bc maintained and compiled in o&r that the
department could be evaluated. As a result, in March 1985, the specifications for tht position of
foreman were developed and the job was adverbsed. The griever applied for the job but the job
was filled by Mr. Ji Hallett.
The union’s representative submitted that the grievorwas entitkxi to acting pay for the
position of foreman as the griever substantially performed the functions of foreman which were
compiled and accepted in the Position Specification and Class Classiftcation - CS .C6150 dated
.March 19th, 1985. The union recognized that there was no requirement upon the griever to
complete or maintain MB.R. abstracts, but in the union’s view, thy core functions of a foreman
did not include the maintensnce~of these records. In the union’s view, once it is established that
the griever pcrfcittmd the functions of a higher classification, the gri&or was entitled to t&ve the
monies for that position even if there was no position or vacancy to which to assign the gtievor.
Furthermore, that punuant to Article 6.1, management did not have to assign the griever to that
position; it was sufficient that the management knew that the griever was performing these duties.
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The employer submitted that the onus was upon the union to demonstrate that on the basis of
an objective test that the grievor performed the duties of the posmon of foreman in order to claii
acting pay. In the employer’s view the sp&cations set tit in the job specifications of March 19,
1985. demonstrated that tht position of foreman was much broader than tht job functions which
Mr. Cdlins performed Whereas the gricvor did rcctive work, write out work orders and assign
work to some of the mechanics. he did not look after the motorcycle division, the cleaning, the
eaining nor the handling of the M.B.R results. Mr. Hallett, the foreman who was hired in May
1985, also went to meetings in Mr. Dip&o’s absence, he formed new time sheets and was
instrumental in looking after the time sheets. Fur&ermo~, Mr. Brig@, who had constant contact
\?ith Mr. Dipietro did not pcrccive Mr. Collins having a supf+ory role. The employer’s counsel
submitted that the griever did not fulfill the. standa& of a foreman set out in the job standards but
merely filled the functions set out in the standads of the mc&utic.
c.
The employer further submitted that the gricvor was not assigned temporarily to the position
of foreman as the gricvor claims that he was acting in this position for an extensive period of time.
h,wtion an employee cannot assume responsibilities to such a degree that the employee would
be entitled to the job merely by the asstiption of the ‘duties and thenby circumvent job postings
and the resulting competition for the job.
The grievance claimed that pursuant to article 6.1 of the coll&%ive agreement the griever was
entitled to wages during his assignment,as acting for&an. Article 6.1 states:
“6.1 Where an employee is assigned temporarily to perform the duties of a position of a
classiiication of a higher salary maximum for a period in excess of eight (8) consccutivc
working days, he shall be paid acting pay from the day he commenced to perform the duties
of the higher classiCcation in aamdata with the next highest rate in the higher classii-on
provided that such acting pay shall not be less than three percent (38)above his current
rate.”
Therefore then onus is upon the union to prove that the griever was assigned to do a job
temporarily; that the job was to perform duties of a position in a classification with the higher
saIary qaximum; and that the job performed was for a period in excess of eight consecutive
wqking days. If dust thu clemcnu arc proved the griever is emitlad to acting pay subject to the
limitation referred to in article 6.4 which covers perk& during which an employee is on vacation.
The first element that the union had to prove Was that the griever was assigned to a job which
was not part of his o&n job. The griever Wras a mechanic 2 and his job was described in exhibit 6
as follows:
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This class covers the positions of highly ,skilkd mechanics or bodymcn performing
complex work on gasoline and/or diesel powered quipmcnt. These employees receive the
tnorc difficult assignments rquiring a high degrr~ of initiative and judgment in deciding
what rcpairs~ arc necessary. These employc~s may supervise the work of one or two
qualifledtnechanicsperformingmxetolnincrepairormaintenancework.
In other positions these cmployets spu5alk in major electrical, transmission or complex
heavy machinery overhauls or large bodywork projects. In some positions they supervise a
small shop, a section of a large shop, or a sma&night shift.
Supenision is exucised by a mechanic foreman or a line official. while these employees in non-supuvkory positions may perform any 0T all of the duties characteristic of a
Mechanic 1, their positions also include one or more of the following functions as a regular
and imporumt assigned responsibility of the job:
c,:
complete ove&auJ of gas and/or diesel engines
diagnosis of diflicult problem areas
&mating costs of repairs for major ‘projects
modifying quiprrxnt acqrding to spccifkations
a&g as l-ecognixed assistant of shop fomman in a large shop
rebuilding extensively damaged vehicles or equipment involving the replacing or
rcpailing of -gwYparts specialking in auto&ctric systems, automatic transmissions or spccialixed hydraulic
systems
1. Preferably grade 10 education; possession of Dcparmaent of Labour Motor Vehicle
Repairers Licenoz Class A or B. Successful completion of the Civil Service Commission
authorimd departmental examinations where applicable. and departmental permit and
Dcparmrant of Tramport Chauffeur’s Licencc for road testing puposes where rqukd.
2. At least two years’ experience as a licemed Motor Vehicle rcpainz preferably in the
samdepamncns
3. Manual dexttityt initiative; ingenuity; ability to lead other mechanics; tact; good judgment; good physical condition.”
A job standard for the poskion of fore& had been formulated in January 1966, and was
amended to include forewoman in January 1980. This position was also described in exhibit 6 as
follovG:
“Forcman/Porcwoman”
This is skilled mechanical and supervisory work in repairing and maintaining complex gasolim and diesel-powered equipment These employees are in charge of a shop, with up
to fifteen mmhanics and apprentices on staff; they arc responsible for quipmnt repair and
maintenance in a district garage or repair shop; in some positions they may provide technical guidance and conduct periodic review of repair work in division repair shops within the
district. They supcrvisc a group of subordinate mechanics, auxiliary mechanical
maintenance staff, and opctators and drivers. Supervision is received from a senior.
mechanic or tinm a departmental superior.
Repair and maintain cars, trucks, tractors, boat motors, fm fighting equipment, pimps,
compressors and other similar equipment and machinery.
Supervise the work of subordinate s,taft assign duties; chqk work petformancc; keep
rquircd records; rquisition supplies.
Instnlct and tlain subordinate staff.
Fk3fca.m other rchted duties as rquird
1. Possession of a Depasunent of Labour Motor Vehicle Repairer’s Licencc, Class A.
2. At least two years of experience in the repair and maintenance of a variety of mechanical
equipment.
3. Supervisory ability; ability to undertake and supuvisc a variety of mechanical repair and
maintenance tasks; personal suitability.
The Position Specifications and Class Classification - CS C6150 summarized the job
description for the foreman. as of March 1985, as follows:
“1. ovcraceing the mechanical repair and maintenance of G.H.O. automobiles and all
Force mommy&s. puforming mechanical rcpaits when necessary.
2. diagnosing difficult vehicle problems to determine the extent and nature of rquircd
repairs and maintenance.
3. assigning the vehicles to mechanics, recommending the contracting out of
specialized (K ovaload wotk.
4. ensuring the satisfactory and timely completion of all work
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checking work of subordinates. providing technical guidance; making
r&mmendations to supervisor rc: training rquircd or performance problems;
sehcduling vacations.
checking work orders, purchase and material requisitions for proper completion,
approving and forwarding as appropriate.
clucking time sheets for accurate completion.
maintaining M.B.R. (management by results) Abstmcts by recording accurate data to
show effxiency and effcctivcness of funds and manhours expended. compiling
weekly totals for supavism. maintaining files of data for audit purposes.
arranging for the proper upkeep of garage equipment, recommending replacements
or authorizing repairs.
nplacing manager, Lakeshore Garage during absence, monitoring the efficient operation of the driver and dispatch section, checkmg that vehicle/building
maim- is being carried OUL”
(‘k The specifications which wen developed in 1985 were not much assistance to the board in
determihing whether the grievor was temporarily assigned to the position of foreman up until the
time when Mr. Hallett was hired. The specScations which were developeddo not reflect the job
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functions that were existing prior to that date. Although there had previously been so&
paperwork involved as part of Mr. Dipietro’s job, Mr. Dipietro did not maintain and monitor
records for the management by result program. Furthermore. whereas the employees had been
asked to complete tie sheets, nobody monitored, correlated or reviewed the records. Mr.
Dipietro merely store&them. On the other hand Mr. Hallett spent approximately four hours each
day maintaining and mlating the time sheets and othcz documnts relating to the management by
result program In addition, Mr. Hallett was responsible for overseeing both the motorcycle and
the car d.ivisions. The dTecr of the eommenceinent of the management by result& program and the
rcspoi~sibiity to oversee both the car aid tlu motorcycle division create a significant difference in
the job function% as seen before and after hiring Mr. Hallett. These diffcrcnces make the job
function of foreman as detcxmined in 1985 significantly different from,any job standard that had
been existing. Tlxrcfore as the job which was created in May 1985 was significantly different
from the functions which the grievor performed, it does not persuade us that the grievor acud in a
foreman’s capacity in the same manner as did Mr. Hallea
Although a job standard for the position of foreman existed, thex were no specifications for
the job until the spring of 1985. and there had been no posting for the job of foreman until that
time. Carolyn Trueman, the. classification officer explained that when there is a rcclassitica$on the
local branch determines the needs of the job, sends a list of the duties and responsibilities fo the
classification department which then prepares the specifications for the job which is finally
confii with the local branch when the specifications are complete. At that point reclassification
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occurs by matching the jo, starting with the lowest existing category and moving upwards until it
cannot fall into any higher category. The specifications for the position of foreman/forewoman
outlmed in exhibit 2 were derived in this manner inMarch 1985. Once the position is formulated,
tf there arc situations in which there are employees whose duties naturally fall within the
specifications that employee will be reclassified; otherwise it will be considered as a new job
which job must then be posted under the mquircmenU of article 4.1 of the colJ&ve agreement.
The job specifications developed encompassed elements of the 1966 job description of foreman/
forewoman but had more responsibilities and added the time-consuming responsibility for
maintaining the M.B.R. rtcords.
The grievor did not get the job of foreman on the basis of a reclassification. Once the
specifications were drawn up, the job was posted and the griever applied for the job, but the job
wa.i given to Mr. J-JLallcn ‘Jhe Board wishes to point out that this grievance was not brought under
section 18 (2) of the Crown Employees Collective Bargaining Act alleging that he had been
improperly classified.
The next cnnsidcration is whether the job standards set out in the ,I966 Job Standard, as
amended, can be of assistance in detcrminin g whether the griever acted as a foreman even though
no position of foreman existed.
The grlevor was a mechanic 2 and the job standards were set out in ~1966. Therefore, if the
grievor wm to act as a foreman, the job that he has to perform has to include the functions thar go
beyond that which were required for mechanic 2 and fall within the standards of a fomman.
Ihe csscnce of the foreman’s job standards which specifically distinguish it from a mechanic
2 is the necessary function of supctvisiig all the mechanics in the shop. Accordingly, the foreman
, ~. has to have the skiUs of a mechanic 2 but must also be assuming the &sponsibil& of supervision
over the whole shop as an essential function of the job on a day to day basis. In reviewing the
class definition of a mechanic 2. there is an element of supervision that may be required. A
mechanic 2 may “supervise the work of one or two qualified mechanics pclrorming one routine
repair or maintenance work The mechanics at the time worked welt individuaJly and also as a
team when they cnuld’not resolve their problems. Although the gricvor participated in problem
solving, we am not satisfied that he in fact super&cd them more than in a minor way. He may
have directi work to some of them from time to time but not suffici&t to fall outside the scope of
a mechanic 2 and within the scope of a mcchanic/fcxmnan. It was also recognized that the duties of
a mechanic 2 may include as a “regular and important assigned responsibiity of the job” the role as
“acting as recognized assistant of shop Foreman in a large shop”. Although Mr. Dipietro was not a
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i ’ foreman but a manager of the shop we arc not satisfied that the griever’s role went beyond that of
assisting Mr. Dipictro. We do not find that the union was able to discharge the onus that the
(I: gricvor’s work went beyond the supervision referred to within the class definition.
In considering the functions that the grievor performed it is clear that although he did not
have the longest seniority that he took on more responsibilities than the other mechanics in the
shop. The griever was obviously an excellent employee as he was prcpamd to go that extra mile in
order that the job would be done and he worked well with people both inside and outside of the
shop.. However, if a pcrsotrtakes on responsib$ties on his own volition that,is not sufficient to
say that by the assumption of the responsibilities that may fall,within a higher classification that he
. then is entitled to receive pay for that higher ch%sitication. To do so would prejudice the rights of
the other employees with respect to the competition for other jobs and would usurp the
management’s rights to determine the job functions and the assignment of the employees to the
various jobs. In order that there will not be chaos and competing claims by employees and
uncertainty by both the management and the employees as to the various roles that an employee
c has, a job has to be either assigned by the employer or someone on the employer’s behalf who has
that authority to make the assignment or the job is posted and a personapplies and is given notice if
he or she is acceJ&d. Ms. Trueman said that usually management assigns an employee a job and
confii the assignment in writing giving~also the termination date and the salary; however, she
aclolowlcdged that that is an ideal situation and tiqucntly assignmentsarc made on a more casual
basis. We mcognizc that Mr. Dipietro asked the grievor to assist him, but we do not accept that he
was assigned to the position of fomman.
In conclusion the union was unable~tn discharge the onus upon it to show that the griever
Was assigned temporatily to the position of fomman. The position that existed as of March 26,
1985 has no bearing to the work which the griever performed We do not find that there was a job
of foreman existing until at least March, 1985. Management had cmattd the job standard for the
position, but had not created the job until the workload in the garages had expanded and there was
i the necessity to maintain the work records. The griever himself acknowledged that Mr. John
Obcrgaw who acted in the same way as he did, acted as a lead hand We cannot agree with the
union’s counsel that an assignment could be made to a job which does not exist. However, even if
the job standards could be said to have cnatcd a position of foreman. we are not satisfied that the
griever performedthe functions which went beyond that of the mechanic 2. Rimarily, he was not
responsible for the car and the motorcycle divisions, he did not instruct or train subordinate staff,
nor supervkc work of subordinates and check their work performance. The grievor may have
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been assigned to act on Mr. Dipietrok behalf by Mr. Dipictro when he was absent; however,
article 6.4 of the colkctive agreemnt precludes any payment for acting in a higher position when
an employee is temporarily assigned to pcrfortn the duties and rcsponsibilitics of another employee
while that employee is on vacation and furthetmore the union did not prove that he was assigned to
the position of foreman for periods of in excess of eight days exclusive of vacation days. We are
not satisfied that the time sheets arc of any assistance in determining the griever’s functions, as
~they were not sufficiently detailed and there were no consistent guidelines or monitoring for their
completion. We do accept, however, that he did assist Mr. Dipictro within the scope contemplated
in the job suutdard for a mechanic 2.
Therefore this grievance is dismksed.
Dated at-Toronto, this 26. day of November 1987.
B.Kirhvood, Vice - chairperson
L. Tuttle, Employer Nominee