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IN TEE RATTER OF AN ARBITRATION
Under
THE CROWN EMPLOiEES COLLECTIVE BARGAINING ACT
Before
TEE GRIEVANCE SETTLEBENT BOARD
Between:
OPSEU (Kelusky, Schaefer, Tornquist,
Rejczak, Kirkpatrick)
-and-
Grievor
The Crown in Right of Ontario
(Ministry,of Transportatiqn)
Employer
Before:
For the Grievor:
For the Employer:
Hearinq: December 1, 2, 1988
T.H. Wilson Vice-Chairperson
F. Taylor Member
D. Montrose Nember
C. Dassios
Counsel
Gowling, Sttathy & Henderson
Barristers & Solicitors
K. Cribbie
Staff Relations Advisor
Human Resources Branch
Ministry of Transportation
-_
Page 1
,1,
DECISIDN
The five grievors all hold the position of Senior Technician
Remote Sensing and are classified as Photogrammetrist 3. They grieve that
they are improperly classified. Ron Tornguist testified as the representative
grievor. He works out of the Thunder Bay office of the Ministry of
Transportation and Communications. The grievor J.B. Rejczak also works at the
Thunder Bay office: -R.A. Kelusky is at North Bay; R. Schaeffer, at London and
Frank Kirkpatrick at Kingston.
By way of background, it is of some significance that in 1982 four
supervisors who were classified as Photogrammetrist 4s grieved that they
should be classified as Kngineer~ing Officer 3s (or equivalent). Their
grievances (GSB #13/82 et al.) styled Loman and the Hinistrv of Transwrtation
and Communications were dismissed by the Board on 25 June 1984. App~lication
for judicial review was made to the Divisional Court and on April 23, 1985 the
Board decision was guashed and set aside and the matter remitted back to the
Board. The reason for the Court's decision turned on the fact that there was
one other employee doing tbe same work and classified at a higher level
(citing OPSEU V. The Queen in Risht of Ontario (1982) 40 O.R. (2d) 142).
The duties and responsibilities of tbe grievors In our case are
described in a Position Specification and Class Allocation dated 05/01/87 as
follows:
Page 2
Duties and related tasks (what is eaplogea required to do, hov and vhg? Indicate perceuraqe oi
tiae spear ou each dut9 for the qeneral superrisioa of the Supervisor Beaote Sensing. Iocusheat
sill:
Perfora aa Interpretative service for the reqional planoiaq, desiqa. constriction and sainteoaace
iunctions in area of re!ote bcnainq asd bthsr photoqraaa(tric functions hy:
reviesinq stud9 asslqnsent oblectives and sattrial requirements. tb deteraiue scope oi study
and clarify specific needs ia discussions with supervisor or cliant:
Delineatinq and classiiyinq pattern eleaeats co provide rhesatie data, e.q. cupoqraphy
drainage, consolidated and unconsblidated aateriais, natural vegetation. land use,. etc. for
plaaninq studies in iora oi laps, annotated mosaics and reporta:
detersiniaq the final location aad preliainary estiaated construction costs of oev hiqhvays.
access roads and other transportation aodes such as rail or pipeline criteria for
eon3tructlau proleers:
deterainiaq aost sound location oi bridqas and culverts:
Identiipinq aes sources of granular aaterial such as their location, tonnage. oature and
depth of overburden, quality and auirahility for various purposes, potential hgdroloqlcal
diiiiculties, haulaqe access, etc., for construction prolects:
providing regional staff ultb information about enqinccrinq soils aappioq on specific
corridors such as their classificatlona, extent aad sUftabllftl~6 tar various purposes,
Instabilities, soit subqrades, drainaqe and related hgdroloqical probless ior use durioq the
COPltruEtiOn bf Various transportation lodes;
providing drainage studies, ditchinq studies and hydroloqp studies for the lbcation and
design of-drainaqe structurea and controls usinq resote sensing setbods:
recossendinq to planni’nq aad design; Uuuicipal and Baiutenance, the location and sire of
culverts:
preparinq approsiaate profiles hg the calculation oi elevations usinq the parillas bar for
future rbute aliqnaent so that poasible qradinq quantities can be catculated and the aost
econoaical route sag he selecredl
Interpretiuq possible environrental sensirlvIties and advising client or supervisor at likely
lapact:
assistinq Supervisor in all the reqional activities required for the production of
phoroqraaaetric plans such as dataraination oi areas of plan coverage by reaote seusinq and
photo interpretation techniques, obtaininq and dereraininq density oi horizontal and vertical
control to complete such plans;
saintaiuinq up-to-date iaaqe library cantaininq regional serial photographs, satellite
iaaqery aud asps and related aaterial as required;
discussiaq and recoancndinq avallabla and aost appropriate courses of action open to
engineering and technical staff on the hasis of stud9 findinps.
Perfora an Interpretive service for the Relate Northern Transportation Office in areas oi resole
sensinq aud other photoqraaaetric functions bg:
conductlnq feasibllitg studies and recasaendiuq the final locations. preliainary desiqn. and
preliainarg estiaate construction costs of llunicipal and Reaote Airports to the established
lransport Canada roninq criteria:
viririnq proposed airport sites as a aeaher oi a pre-enqineeriuq teaa to establish the etact
aliqnaent location for the proposed runvaps, parkiaq, apron and access road and to sake
iurther aodifications to the aliqnaent if required on site dependinq on additional survey
inforaatioh, i.e. soils, etc.:
Page 3
Assist supervisar Qa 9Qte casplel pralects which 9ay involve studies in palicicallg seasltive
areas: resQlutiQa .Qt prQhles3 created by the coa9cructiQa. pldaaiaq Qt desija ‘QC ileld
verification of disputable phQtoqrassetrie latetpretstiQa9. etc. Duties say include:
.:beckiaq dr9iasqe vork prepared by zoasultaats reqatdiaq suai,:ipal drains aod rceQ9seadiaq
changes shere required;
preplriaq draiaaqe studies and repQrt9 rcqardiaq draiadqe daraqc cl9i99 aqsiast tbc Hiairtty:
:,ndu;tLaq t?lsibility studies and det?rsiaiaq. i~r the Norrbero Zatsri: R?SJur.:?S
yraaspztt9tiQa CQs9tttee possible acce99 road lacatioa and pertinent CQasttuctiQa $592~:
detersiaiaq [II the Hiaiscry si Norther DevclQpteat aad iliner. the lQsati,Qa Qi ptssibl? ae9
hiqhvays and the upqtsdiaq Qf elistiaq hiqhuays sith estisated coastructioa ~::sts 9s part :f
9 prQqra9 t! cstablisb 1Qaq raaqe hiqbvay 2QastructiQa priarities ior Norther Cat9ri.I:
prividiaq Jther iaiQrsati.Qa as required by supervtsur.
Carry iut field ?srk to CQllect iafQisatiQa’tQ verify reSUit3 Qi relate seaslaq laveSilqdClda9.
by perfQrsiaq tasks such as:
visiting Qiiises si :~Qnsultaats and qovera9eat aqeaciar:
:oataccioq the public. c.q. PrQpeKty QYaers:
sakiaq ,Qa-rite iaspe;tiaas and recQ9readatisas.
Periota ether related duties such ss:
actiaq in the absence Qi the Supervisor, Relate Seasiaq:
tr9iatnq rcqular and casual stafi in relate seasiaq 9ethQds:
keepiaq abreast Qi &eyei$pseats in the iield Qi Rcrote Sensing and Pboraqrassetri:s by zrudy
si published sateriel and attendance dt professiQaa1 coareatisas and sesiaars:
asslstiaq in the Qrqaai:stiQa sad preseatatiQas ui teqiQaa1 cQuf9es i:r t?:hai:il lad
pt;iessiQn91 staii JP Reroti Seasiaq and Shotaqrasletry:
as assiqoed.
Tornguist testified that the Surveys and Plans Section of the
Ministry using survey information produces plans and maps for construction
engineering and .for contracts and legal survey plans. The plans for
construction engineering are for highways and airports. There are also
photogremmetric plans made from air photographs. In the case of legal plans
an actual survey on the ground is needed. It shows profiles with vertical
cross-sections. The legal survey plan (called a B plan) shows only two
dimensions. His testimony was that the bulk of his own work as a Senior
Technician Remote Surveying was interpretation of photographs. He uses his
judgment to determine how terrain will affect projects. But the
photogrammetric plans themselves are produced by the photogrammetric section
in Toronto. The photograph analysis is intended to find the best way of
locating a corridor for a road or the location for an airport. He looks
through a device (stereoscope) at two pictures placed side by sides. It
provides a three dimensional picture so he can analyxe the hills, valleys and
creeks. He would try to find as many suitable locations as possible. He does
a preliminarystudy of the physical problems and. he transfers the information
from the photographs to a map on which he marks the possible site and perhaps
a preliminary recommendation. This phase is called the Preliminary
Feasibility Study. When the proposals progress through the planning and
design process, his next involvement would be a Preliminary Site
Investigation.. He goes with someone from the Environmental section in the
Ministry of Transportation and someone from the Geotechnical section to the
site. If for example, the project is a proposed airfield for an Indian Sand
someone from the Air Office would accompany them to speak to the Band. An
internal meeting is then held to eliminate marginal sites. Next he would .
request a Control Plan from Head Office. The photogrammetrists prepare that
from aerial photographs. After the process has narrowed the choices to a few
possible sites, the grievor would then go to these sites where the team
locates and cuts survey lines and does a field survey. He provides guidance
to the survey team. There would be a fuil survey team. The grievor himself
would spend much of his time looking for local gravel sites that could provide
building materials. His next involvement would be to prepare a Preliminary
Design which involves writing a report comparing two possible sites and
including costing. This involves such factors as the cost of clearing trees,
building access roads, availability of materials and the terrain, and any
environmental factors. The next phase is another Internal Meeting to which he
may be invited to answer questions. Normally the grievor's supervisor would
attend this meeting at which the final site selection is made. ~Only once has
he ever had one of his recommended sites rejected.
The grievor does prepare drainage and hydrology studies and filed
an example of such a report he had prepared for a law suit brought against the
province in relation to alleged run off of waters onto a claimant's land.
Although he may mark land forms on a thematic map, called a mosaic, he does
not make the mosaic. In his opinion, photogrammetry is the science of precise
measurement to produce plans and he does not produce these plans.
Patrick Otway is the Head of Surveys'and Plans, Northwest Region.
He had been in surveys and plans for 13 years since it began. Before that he
was a field supervisor in engineering and survey. Photogrammetry in his view
is the interpretation of aerial photographs. The term remote sensingcame
into use around 1971 but the work had been done since 1948 under~the title
photogrammetiy.
James Henderson has been the Head of Personnel in the Central
Region since 1977. As an employee in Personnel before that, he gained
specialized experience in classification and pay administration. In 1981 the
regional positions were reclassified to Photogrammetrist 3. This decision is
set out in a memorandum dated 81.05.19 from J. Bebbington, Classification and
Pay Administration Officer to the Heads, Personnel Services. It explained as
follows:
Heati, Personnel Servicks
All Regions
81.05.19
From: Personnel Branch,
1st Floor, West Tower.
ra: ALLOCATION OF REGIONAL POSITIONS To PHDTOIXAMFIXIST 3
A grievanw filed in the Central Region and subsequent discus-
sions with Civil Service Staff and Head Office and Regional Line
-~Managers indicate that the class of Photogrametrist 5 is the appro-
priate ‘best fit" level for tbe position of Senior Remote Sensing
Technician in the Central Region.
The class definition for Phoiqgrammatrist 3 states in part that;
: : :. “This class covers positions of fully experienced photogrammetrists,
.~ .who under general supervision of a photogrametry section supervisor
are receiving further photogrammtry training and familiarization
prior to assignment to regional photogrsmmetdc positions~*. It also
goes on to state that, “As regional photogrametrist-in-training,
employees . . . disam thb application of photogrametrlc methods to
solving mgineering problems in the region and supply information
on photogrammetric retieas and techniques available to regional
personnel~. Tkey prepare drainage and hydrology studies, mosaics, study plans. and photograwetric control networks for an assigned
region; They may be required to participate in training staff..“.
The Central legion position -later to the clsss definition
-in that it rquiras the dagree of further photogrsmmetrlc training
and familititation callad for in the class definition to be able to undertake responsibilities of tbu Regional Photogrsmmetrist, dis-
azss the application of photograwetric methods to solving engineer-
‘ing problem in the regif~n and supply information on ~photogrmetric
servieas and techniques available-to regional personnel.
The Central Region position a@0 prepares studies, mosaics; etc.
Would you please ascertain if.the foregoing criteria applies to any positions in your region.
To assist you in reviewing, writing snd allocating we ara i
attaching a copy of the position specification in the Central Region
which has been allocated to Photogrametrist 3 on an atypical basis.
Policy on the effective date for class allocation is the first
day of the month in which the position is submitted for class al-
location.
JB:dX
3. Bebbin’gton.
Classification and Pay Administration Officer.
In the opinion of the witness, Personnel had succumbed to pressure and
reclassified at Photogrammetrist 3 level. The witness did not agree with this
step: in his view, the photogrammetrist 2 level was more appropriate. The
change was done on a "best fit" approach which he claimed was synonymous with
"atypical." The term "atypical" is defined in the Ontario Manual of
Administration as follows:
"Atypical-Allocation" The allocation to a class of a position
that in general fits that class better
~cban any other but is significantly
different from other positions in the
class with respect to:
function(s) carried out; or
skills and knowledge required.
Best fit is a relatively common practice which has become more
common recently because of the diversity of jobs. Class standards are not
developed for all the jobs.
Union Counsel asked Henderson whether he agreed that the core of
the definition of a classification must apply to a job. He said that would be
ideal with the exception of an atypical allocation. Turning to the class
standard, Union Counsel put to the witness that the grievors did not fit the
Class Standard for Photogrammetrist 3. Henderson agreed. He believed they
_
fit Photogrammetrist 2.
I have attached the Class Standards as Appendix A. Central to the
union's case is the first paragraph of the Class Definition of
Photogrammetrist 3. It states:
"This class covers position of fully experienced photogrammetrists
who, under general supervision of a photogrammetrist section
supernsor, are responsible for directing a staff carrying out
photogrammetric control operations OR, are receiving further
photograimetry training and familiarizatzon prior to assignment to
regional photogrammetric positions."
Page 8
The union's position simply put is that the grievors do not fall
within either of those two descriptions. They do not supervise a staff and
they are not in training. Furthermore, they do not generate photographic
plans: they interpret them. In the final paragraph in the definition, the
only part of it they do is "prepare drainage plans." In the union's view, the
grievors do not do the core function of the class definition.
The Ministry's position was that as the evidence had indicated the
class definitions were created before the service was regionalized. The
classifications are sufficiently general to cover the grievors. Qtway had
testified for the Ministry that photogrammetry covers remote sensing. In
1966, the standard contemplated that the supervisors would do the analysis and
there is no evidence that the work is any more technical now'than it was in
1966. Under these circumstances, the atypical classification is the best
approach.
It is the Union's response to this argument that while the
atypical classification may still have a role to play, the use of atypical
classification should be read in the light of the Bern, decision (Divl.Ct. )
and that Vice-Chairperson Saltman's decision in &@l precludes the use of
these class definitions to cover remote sensing.
The principal issue in terms of arbitration theory or doctrine
before us is the use of atypical classification in light of the Divisional
Court decision in OPSEU and w & Ministry of Community & Social
Services. At page 13 of that decision, (March 13, 1986) Hr. Justice Reid
wrote :
I, . . . The question that does arise is whether the Board had power
to require the employer to find or create a classification for
grievers. I think it had that power. Its authority under s. 19
of the Act is unt.ramwelled. It "shall decide the matter." Simply
to dismiss the grievances when it acknowledges that the grievers
-..-.-. -~.. __---~
Page 9
are wrongly classified is to empty the grievance procedure of any
meaning. It is a common place of the law that the existence of a
right implies the existence of a remedy."
Then at page 15:
. . : If the board concluded that the classification was wrong,
its mandate Was to effect a proper classification. Its
jurisdiction is unrestricted. Its mandate is remedial."
In a recent decision of this Board, Kuntz and Ministry of Housing
(GSB 85/89), Vice-Chairperson Verity did not accept a union submission that an
atypical allocation is inappropriate per se following the judicial review in
w, (see pp.8 ff.). Without commenting at this time on all aspects of Mr.
Verity's reasons, I take it now as this Board's position as a bare proposition
that "atypical" classification is not per se invalid. The Ministry Counsel
cited to this panel the decision In Patrick et al. and Ministry of Community
and Social Services GSB 547/80 decided 11 July 1980. At page 22 the Board
therein states, quoting first a Ministry witness:
I. . . . atypical situations occur when positions, duties and
responsibilities differ significantly or the degree of skill or
knowledge reguired differs significantly from the class standards.
If a very small number of people are doing .a job which does not
appear to fit properly within any class series, rather than
develop a new class series for that number the "least
inappropriate" class series is chosen. In the case of the
grievors they are apparently two of.approximately 50 employees in
the province who are in the ~same boat and up until now the
Ministry has not been prepared to develop a separate class series
for them. It has also been pointed out in various awards such as
Hooper (Swan) 47/77 that where the grievor is in ao atypical
classification, perhaps more latitude should be given to the
grievor when assessing the appropriateness of the classification.
Thus, when looking to another classification to see if it is more
appropriate, rather than comparing duties which will nomally fail
to show a fit, one would compare by analogy."
It is interesting to note that in that pre-Berry decision the
Board found that the grievers were not properly classified as CW 25, found by
Page 10,
analogy, that they more properly fit the Technical Consultant Series and that
the parties should meet to prepare an appropriate classification recognizing
the lesser responsibilities the grievors had than the TC 1s in that series.
I am of the opinion that while the Bx decision may not have
invalidated atypical classifications, this Board given its clear mandate to
direct that a new classification be established when it is satisfied that a
grievor is improperly classified must insist that an atypical classification,
not vary widely in its core features from the archetype of the classification.
In our case, on the evidence it is clear that the grievors do an entirely
different job from that described in the class definition. Even the
Ministry’s principal expert witness on classification, Henderson, said under
oath they did not fit. Indeed, according to the testimony of the
representative grievor, his work is not that of a photogranunetrist at all -
his work 1s entirely different. I am satisfied that the facts support that
testimony. A photogrammetrist makes photographic plans. He does not do
that. I do not even see an analogy here. In the Lm decision, Vice-
Chairperson Saltman wrote at page 10:
“although on a superficial reading, the job of Regional Remote
Sensing Supervisor would appear to be described within the
PhotogramneCrist class standard, such a reading fails to recognize
the essential distinction between photogrammetry (which refers in
general tern to the process of obtaining precise measurements,
including maps, from aerial photography) and remote sensing (which
deals with interpretation thereof). In view of this distincrion,
the conclusion is inescapable that the job of Regional Remote
Sensing Supervisor is inadequately deal .z with within the
Photogrammetrist class series.”
Mr. Cr’bbie argued for the Ministry that the Board in Loman had no
evidence to support that finding of the “inadequacy of the photogrammetrist
series” and that this Board had testimony justifying a finding of an atypical
Page 11
classification within tbe photograannetrist series. I do not agree. I believe
on that point, that Ms. Saltman was absolutely correct. The photogrammetrist
series was inappropriate for the supervisors and is inappropriate for the
grievers and specifically in our case the Photogrammetrist 3 is inappropriate
as a classification. It is also clear to me that the problems of the class
standard have to a very large extent been exacerbated by the decentralization
of these Ministry operations as Ms. Saltman noted in her case and as was clear
from the evidence before us. That being so and in light of the Board's
jurisdiction, a Bern, order is necessary.
The parties agreed that in the event of the success of the
grievors in these grievances that should any issue of interest arise it would
ba governed by the rule in the Hallowell House case (Service Emplovees
International Union. ID2 183 and Hallowall House Ltd., rl980[ O.L.R.B. Reports
5, -and that the Board should remain seised should any disagreement with
respect to it arise.
The other outstanding issue is tbe effective date of any change in
classification and any back salary that may result. The union argued that
there were on-going discussions between the dates on which the grievors wrote
letters requesting reclassification and the filing of the grievances. In the
union's view retroactivity should be to the date of complaint and not just 20
days before the filing of the grievance. It referred the Board to the
decision in Baldwin & w & Ministry of the Environment (GSB 0539/84,
decided 13 April 1988). The Ministry relied on the 20 day rule and referred
the Board to Smith and Ministry of Community and Social Services (GSB 237/81 --
decided 5 March 1985).
In the u decision, the Board decided that the usual rule in
the case of continuing grievance isr
Page 12
”
. . . barring the existence of circumstances which would make it
inequitable for the Ministry to rely upon it, retroactivity will
be limited to the period of time within which it was permissible
for the grievor to file his grievance. In the case of this
Collective Agreement, that period is 20 days prior to the day upon
which the grievance actually was filed."
.The Board cited the earlier Board decision in OPSEU and Ministry
of the Attornev-General, GSB 71/76 which followed the private sector rule as
found in Re: __ Union Gas Co. of Canada Ltd. (19721, 2 L.A.C. (2d) 45
(Weatherill). Re: Automatic Screv Machine Products Ltd. (19721, 23 L.A.C.
396 (Johnston). Re: National AZ Radiative Manufacturinq Co. (1967). 18
L.A.C. 326 (Palmer).
The Baldwin decision cited u as the relevant authority op the
20 day rule and then analyzed a series of subsequent cases including the
Lowman decision released on August 20. 1987 (following the remission back to
the Board by the Divisional Court decision discussed above) in order to decide
what situations fell outside the 20 day rule. .In Smith itself, the Board
analysed the situation in Hocper & Ministry of Government Services, GSB
47/77 to which it was referred as one where the Ministry had taken unilateral
action in response to the grievor's complaint which might have resulted in the
reclassification that he sought. It was only when the Ministry made known
that it would refuse his request that the grievor realized he would have to
use the grievance procedure. The responsibility for the delay was that of the
Ministry not the grievor. In its own case, the Board found:
"The facts of the present case do not appear to raise any similar
eguity against the Ministry. To be successful such an equity
would have to be in the form of a promissory estoppel, i.e. that
the representations of Ms. Martin amounted to a clear and
unequivocal promise to the grievor that all aspects of the
settlement of the 12 grievances, including retroactivity, would be
applied across the system; that Ms. Martin intended the grievor to
act in reliance upon this representation; and, that the grievor
did act in reliance upon it in circumstances where it would be
Page 13
inequitable to permit the Ministry from going back on the promise.
See Central London Prowrty m. W
In the Lowman decision, Ms. Saltman after referring to the Smith
decision states at page 4:
“The’-matter of the grievers' classification has been an issue
since well before their entry into the bargaining unit. Various
Supervisors supported their request for reclassification. After
the grievers came into the bargaining unit and raised the issue of
their classification, they were advised that their Supervisors
were making representations to have their jobs reclassified
upward. It was only in the summer of 1981 that they were advised
that there would be no change in classification. Shortly
thereafter, the grievances were filed.
“The circumstances in this case are similar to those in the case
of Harper, 47/97 ISWanl, which also involved a claim for
reclassification. In that case, before filing a formal grievance,
the grievor complained to his supervisors about his
classification. All of his supervisors gave tacit approval to his
claim for reclassification. Nevertheless, the claim was denied by
the classification officers of the Civil Service Commission who
were empowered to make the final decision. It’ was only when he
was advised that his claim had been denied that the grievor filed
a formal grievance. In those circumstances, the Board decided
that it would be inequitable to limit retroactivity to the time
allowed for filing a grievance under the collective agreement
because the grievor relied on his supervisors’ representations in
delaying the filing of a formal grievance. As a result, the Board
ordered relief retroactive to this date on which the grievor made
his "complaint" known to management even though it was not in the
form of a grievance. . . .
‘*In our view,
the circumstances in the instant case are not
dissimilar from those in em. The grievor5 expressed
dissatisfaction to their respective supervisors. Various
supervisors made representations on their behalf to have their
classification changed. But the matter remained unresolved until
the summer of 1981 when their requests for reclassification were
denied. In these circumstances, it would be ineguitable to limit
retroactivity co the time period for filing a grievance. as the
grievers relied on the efforts of their supervisors. Even though
there was no express representation that the classification would
be changed, the matter was being actively pursued by members of
management . As in Hooper responsibility for the delay does not
rest entirely with the grievers. . . . ”
Page 14
In Baldwin, the Board adopted the remarks made by the Board in
w, namely,
“Yet there is a competing policy which comes into play in this
case. That is, the policy in favour of settling disputes short of
invoking the grievance procedure and having recourse to the
Grievance Settlement Board. A rigid application of the “20 day
rule W would discourage employees from attempting through less
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 determining compensation in the event of success.
“In the instant case the employees began to have some concern in
early 1985 about their classification. They had known since July
1984 that they were responsible -for all of the functions although
not all of them had been trained at the time. By the end of 1984
training had virtually been completed on all of the functions. In
early 1985 attempts were made to have the position reclassified by
rewriting the position specification in a way which would more
accurately reflect the job as it changed and submitting it to
Personnel for classification. Those efforts were unsuccessful but
they should be applauded. Classification officers are far more
competent than we are to classify jobs and to the extent that
classification disputes can be resolved by those most competent to
do so the parties should not be discouraged from seeking relief
through such informal means.
“Thus, we do not believe it appropriate to apply the 20 day rule
where informal efforts have been made to achieve a settlement of a
dispute short of recourse to arbitration. Those ‘efforts should be
encouraged and in the event that they are not successful in
achieving a settlement and it becomes necessary to grieve, such
relief as might be awarded by the Grievance Sectlrment Board
should be retroactive to the point where steps were first taken to
settle the grievance informally.
“We have no precise evidence before us as to exactly when those
steps occurred except that they were taken in early 1985.
Consequently, we can do no more than issue our award in general
terms, that is, that the employer is obligated to compensate the
grievor= in respect of the difference between their rate and the
Clerk 4 rate for a period from “early 1985” to November 15, 1985. 9. . . .
In the Baldwin case itself, the Board moved the period back to
December 1982 when the grievor had presented a brief to management on behalf
of all of the employees in the group asking the Ministry to go further and
Page 15
undertake a full review of the Classification Standards. The Director of the
Central Region indicated that the brief had merit and the Director of
Pefsonnel said nothing. The Board cut out from that retroactive period a
period after the request was later formally rejected by management until 20
days before the grievance.
This has been a somewhat lengthy but useful detailing by me of
individual cases where this Board was relieved from the 20 day rule. In my
opinion, these factual situations are quite consistent and this Board's policy
of encouraging meaningful negotiation between the parties prior to formal
grieving made clear. I need now only look at the facts in our case to decide
whether the pattern matches.
On March 19, 1986, R. Tornquist wrote.to P. Otway, Head Surveys &
Plans attaching a letter from R.S. Schaefer, Senior Remote Sensing Technician
in the Southwest Region to Loscombe, Head Survey Section, London. Tornquist
stated that he and J. Rejczak shared the same cdnsensus ahout thei; current
classification as Schaefer. The reclassification of supervisors from
Photogrammetrist 4 to EO 3 was particularly of concern to them in its impact.
Tomquist concluded:
"We believe that a comparative upgrading should occur at the
senior technician level as soon as possible."
On October 22, 1986, P.H. Otway replied:
'*Further to our -conversations on this matter, the situation
referred to in your letter has been discussed at two Head Office
Surveys & Plans Commitfee meetings. The conclusion was that the
Senior Technician's specifications would be submitted fo Head
Office Surveys & Plans. The specificarion will be forwarded fo
the Human Resources Branch for review and evaluation.
"Once the position classification has been confirmed/determined,
you will be informed accordingly. The general consensus af this
Page 16
rime is that the present position specification reflects these
duties and responsibilities of the position. ”
Schaefer grieved on September 29, 1986. Tornguist himself grieved
on October 26, 1986. He testified that he had not grieved right away because
he was attempting to determine if there was any progress in the study going on
concerning the classification. They were informed orally of what happened at
the Surveys and Plans Committee meeting. The general feeling in management
was that they were properly classified. When asked why he waited until
October to grieve Tornguist testified:
'We were trying to follow proper channels. We also did review the
job specification: management asked at a meeting. ”
They also frequently asked their supervisors how the review was
going.
otway. testified that the drafting of the new position
specification (Exhibit 4) was done in late 1986 between October-1986 and I
January 1987. He also testified that between the receipt of the March 10th
memorandum end the receipt of the grievances, he never made any
representations that the grievors would be reclassified: nor, to his
knowledge, did anyone else.
The union argued that the March memoranda along with the on-going
discussions justifies en order relieving from the 20 day rule. The Ministry
argued that the March memoranda are not sufficient notice since they do not
really properly set out the reasons for the challenge to the classifications.
In light of the jurisprudence set out above and this Board's clear policy of
encouraging efforts to resolve these issues internally without recourse to the
grievance stage, I am satisfied that these grievers through their written
Page 17
memoranda and their participation in discussions vigorously pursued their
claim to improper classification prior to filing of the grievances so as
sufficiently to put management on notice that if they were not reclassified by
management, they would pursue their remedies. Management did not until
October 1986 inform them that they would not be reclassified.whereupon they
filed their grievances. Any adjustment of wages that might result from the
reclassification directed to be made by this Board will therefore be
retroactive to the filing of the relevant memorandum for each grievor.
In the result, the grievances are allowed on a finding that the
grievors are currently improperly classified. The Board orders the employer
to classify the grievors properly so as to correctly reflect their actual
duties and responsibilities. The employer shall complete this
reclassification within a reasonably expeditious period of time and this Board
will retain jurisdiction pending the implementation of this decision,
including as well any issue of retroactivity and‘interest as set out above in
this decision.
DATED at Toronto, Ontario this 6th day of December, 1989
T.H. Wilson
Vice Chairperson
D. Montrose, Member
12880
APPENDIX
” A ”
J PHOTOGRAMMETRIST 1
CLASS DEFmITION:
This class covers positions of employees who are receiving training
in the use of photograminetric instruments such as stereoscopes, Multi-
plex and Saltzman projectors, sketchmaster& and Parallax Bar and the
application of photogrammetric methods and techniques to civil engineering,
resource conservation and cartographic operations. Under close super-
vision, they are given relatively routine assignments such as simple photo
identification, tracing of photographic detail on study plans, preparing semi-
controlled .mosaics, etc. They are expected to produce finished results with
the assistance and advice of senior photogrammetric personnel witb whom
work is checked on completion for accuracy and adherence to established
standards and specifications. As photogrammetric skills and aptitudes
develop, employees receive specialined training in photo analysis for
hydrology and drainage studies oi photogrammetric control operations.
They prepare study plan control sheets r.elating ground control data,
checking centre points and tie points, laying out slotted templates for adjurt-
ment of ground control, marking adjusted centre and the points on master
grid, pointing and cutting templates. They operate Multiplex and Saltzman
Projectors to transform photographic detail onto study plan sheets. identifying
control detail with a stereoscope from aerial photographs. They prepare
photogiiphic.plans and semi-controlled mosaics; plot details using sketch-.
master from aerial photographs to new or existing maps. Under close
supervision,. they asgist senior photogrammetrists in the production of large
area drainage and hydrology patterns, site profiles of problem areas and
alternate r’&ute location plans by identifying ground details, drainage patterns,
true ground shape and analysing soil and rock conditions from vegetation
coverage observation.
SKILLS AND KNOWLEDGE REQUIRED:
1. Stereoscopic vision snd ability to read and analyze detail on aerial
survey photographs.
2. Basic knowledge of field survey and/or drafting methods, practices
and terminology.
QUALIFICATIONS:
1. Grade 12; preferably Grade 13 mathematics OR an equivalent - combination of education and experience.
2. At least two years’ field survey or drafting experience and success-
ful completion of examinations approved by the Civil Service Commission
s four years’ related drafting and photogrammetiy experience.
July, 1966
1
4
12882
PHOTOGRAMMETRIST 2
!
CLASS DEFINITION:
This class covers .positions of fully trained photogrammetrists, who
under direction of senior photogrammetric personnel, perform technical
work involving the use of photogrammetric instruments and the application
.of photogrammetric methods and techniques. They prepare detailed
hydrology and drainage studies, an d establish systems for pbotogrammetric
control. They are required to carry out assignments to completion, re-
ferring oaly unusual or difficult problems to supervisors. They use
judgment in interpretation, selection and presentation of data and initiative
in planning details of assignments. Work is checked on completion for
quality, accuracy and adherence to sp;ifications and standards. Also
covered is one position where the employee acts aa group leader of the com- . pilatron sub-section preparing study plans and mosaica.
By three dimensional etudy, they select, identify and determine
vertical and horizontal control points for topographic mappings. They position
aerial targets in ti,e field ensuring intervisability between target points; in-
strutting field surveying’ personnel in carrying out necessary ground surveya;
contacting private owners, public’utilities Bnd other governmeatal~agencies
for permission to use towers, buildings, struduras, em. for control pur-
poaes. They compute geographic and grid co-ordkramr, machine or
instrument settings and scale adjustments for photogrammetric plotters
and plot co-ordinates on compilation manuscripts from data received from
electronic zomputing centre.
By using knowledge of surface soils, geology, and structural make-up
of Ontario, they interpret aerial photographs and prepare detailed drainage
and hydrology studies, reports and profiles. They stereoscopically project
new highway routes md revisions to existing systems on mosaics, prepare
mile by mile cost breakdowns and comparisons to alterrmtive routes. When
required, they prepare controlled mosaics of critical areas for enlargement
purposes. They may be required to assist in training junior employees.
In the group leader position, he also directs the work of a sub-section
engaged in the production of study plans and mosaics by photogrammetric
methods. They assign and check work and provide guidance to trainee
photogrammetrists in the early stages of their employment.
SKILLS AND KNOWLEDGE REQUIRED:
1. Stereoscopic vision and ability to read, amlyze and interpret detail
on. aerial survey photogrephs.
. . . . . . . ‘2
.
12882
;
-2-
Photogrammetrist 2 (cont’d)
Skills and Knowledge Required: (cont’d)
2. Drafting skills;- competency in mathematics; skill in tbe use of
photogrammetric equipment for tbe preparation of clear and
accurate plans, manuscripts, maps; ability to calculate
photogrammetric control points, and check measurements on
drawings and plans.
3. Thorough working knowledge of photographic analyses and iater-
pretation methods, work procedures, and their application to the’
solution of engineering and conservation problems and operations.
Ability to carry out assigned projects and to present information
and data verbally and in report form to others. Familiarity with
various types of engineering and land survey plans. topographic,
geological, and soil maps.
QUALIFICATIONS:
1. Grade 12; preferably Grade 13 mathematics OR an equivalent -
combination of education and experience.
-2. At least two years’. experience as a Photogrammetriat 1 G six
years’ progressively responsible experience in pbotogrammetry and
drafting.
July, 1966
12884
PHOTOGRAMMETRIST 3
CLASS DEFINITION:
This class covers positions of fully experienced photogrammetrists
who. under general supervision df a photogrammetry section supervisor,
are. responsible for’ directing a staff carrying out photogrammetric control
operations OR are receiving further photogrammetry training and familiari-
sation prior to assignment to regional photogrammetric positions.
As a photogrammetric contro1 supervisor, he directs .a staff re-
sponsible for obtaining all required photogrammetric ground control by
photo examination. He investigates, locates and places aerial targets
throughout a project. He prepares and requests a survey by electronic
measuring devices and standard field survey methods and ensures that staff
plot the resultant data in manuscript form to be used by stereoplotting and,
special projects group. -He examines all aerial survey films flown by
commercial companies to ensure compliance with specifications. He plots
and compares cross-sections prepared photogrammetrically to overlapping
field source data for accuracy and ensures the movement of plans, photo-
graphs, cross-section data, and croaar reproductions ordered through de-
partment by consultants. He is responsible for the indexkg and storage of
all finished manuscripts, electronic measurement control data, and vertical
and horizontal control‘photography.
.
As regional photogrammetrist-in-training, employees carry out
periodic visits to an assigned geographical region. They discuss the applica-
tion of photogrammetric methods to solving engineering problems in the’
region, and-supply information on photogrammetric services and techniques
available to regional personnel. They prepare drainage and hydrology studies,
mosaics, study plans, and photogrammetric control networks for an assigned
region. In all positions they may be required to participate in traintig staff.
SKILLS AND KNOWLEDGE REQUIRED:
1. Stereoscopic vision and ability to read, analyze and interpret detail
on aerial photographs.
2. Thorough working knowledge of photographic interpretation methods,
photogrammetry control, and departmental standards and practices.
Knowledge of all types of land plans, geological, soil and topographical
maps.
. . . . . . 2
Skills and Knowledge Required (cont’d)
3. Ability to prepare reports and correspondence, advise and explain
photogrammetric methods to others and to direct and supervise a
staff of photogrammetrists.
QUALIFICATIONS:
1. Grade 12; preferably Grade 13 mathematics OR an equivalent
combination of education and experience.
2. At least nine years’ progressively responsible photogrammetry and
drafting experience, .three years of which has been as a Photo-
grammetrist 2.
.
July, 1966