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HomeMy WebLinkAbout1990-1038.Boulanger et al.91-05-30RIEVANCE CPMMISSION DE El-fLEMENT REGLEMENT 1 BOARD DES GRIEFS 1038/90 IN THE RATTER OF AN ARRITRATION Under THE CROWN EWPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLRNBNT BOARD BETWBEN OPSEU (Boulanger et al) - and - Grievor The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE: FOR THE D. Wright GRIEVOR Counsel B. Fisher G. Majesky M. O'Toole Vice-Chairperson Member Member Ryder, Whitaker, Wright & Chapman Barrsiters & Solictors FOR THE EMPLOYER C. Peterson Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING December 21, 1991 This is a classification case involving six grievers employed as Technician Surveys, which are currently classified as Technician 3, Survey. The parties have agreed that Marc Gerald shall be the representative grievor and therefore the outcome of his case will bind the other grievors. The Union is seeking a Berry award. We are to remain seized of this matter in the event of a Berry award is granted to determine the issue of retroactivity as the Union is claiming compensation for the period more than 20 days prior to the filing of the grievance. The class standard for Technician 3, Surveys is anached as an Appendix to this decision. The Union alleges that the grievor is misclassified for the following reasons: 1. The grievor performs both legal and engineering surveys: 2. The grievor uses computer equipment not contemplated by the Class Standards. 3. The grievor spends a large degree of his time on supervision. The parties agreed on the following facts: 1.. The grievor spends 10% of his time using a computer station as opposed to non-computerized surveying tools. This use is no greater than set out in the facts to a previous GSB decision involving this same position entitled Parker 1528/88 (Roberts) in which case the Board found that the use of a computer to that degree, in itself, did not make the existing Class Standard inapplicable. -2- 2. The issue of performing both legal and engineering surveys is properly set out in Williamson 133/81 (Samuels) in which case the same position was held not to be misclassified merely because the grievors were performing both duties. The evidence before that Board showed that an employee doing legal surveys could do engineering surveys with no additional courses of training, therefore, the double competence aspect of the job did not have a significant bearing on the job responsibility. Furthermore, the parties agreed that solely for the purpose of argument, and subject to proof at a later time, the grievor spent 45% of his time taking charge of a survey crew and acting as a party chief. The grievor does not do all of the duties of the party chief in that he doesn’t perform the management duties such as discipline and approving overtime. There are two ways in which the grievor takes charges of a survey party. Most often a party chief is assigned to a crew along with three Technician 3, Survey. The grievor is designated as the key man by the party chief on a job by job basis. The party chief does not go to the job site with the crew. The party chief assigns work to the crew and places the grievor in charge to make sure the work is carried out properly and safely. This type of supervision occurs about two days each week. The second type of supervision occurs less frequently, altogether about five weeks per year. In this scenario there is no party chief, and therefore the grievor performs all the party chief duties, except those management duties referred to above. The grievor determines the work assignments and does the paperwork. He then reports directly to a ‘. supervisor, not a party chief. This is quite different from other Technician 3, Surveys who only spend about 10% of their time doing supervisory type work. - 3 - UNION’S ARGUMENT: The Union concedes that looked at in isolation, neither the double competence issue nor the computer station issue indicate that the grievor is improperly classified as there is nothing in either the Williamson or Parker case which. is wrong enough to overrule in accordance with Blake. However, the Union says that a combination of those factors, together with the supervision situation, makes this case different from the rest. The Union goes onto say that the Class Standard contemplates supervision as being an ancillary part of the employee’s duties, not the major portion of the duties as it is with the grievor. Furthermore, the grievor is not “assisting in the supervision and training of junior members of the party” as the other members of the survey party are also Technician 3, Surveys. The use of the word ‘junior” in the Class Standard implies that the individual supervises a Technician I or II. EMPLOYER’S ARGUMENT: The Parker case involved both the allegation of the technological change and the double competence and it confirmed that the Technician 3 Surveys is the proper classification for this position. The supervisory aspect does not change the situation as the Class Standard clearly contemplates the supervisory responsibility performed under the assumed statement of facts. -4- DECISION: The level of supervision exercised by the grievor is that of a working supervisor, that is, while he is acting as a key man on the crew, he is also performing duties similar to that of the other Technician 3, Surveys. Thus to say that he spends 45% of his time in a supervisory role does not mean that he only spends 55% of his time doing non-supervisory Technician 3 Survey work as the two are not exclusive. The key sentence in the Class Standard is the last one. “They assist in the supervision and training of junior members of the party and may act as party chief when required”. There is nothing in this sentence which expressly or implicitly limits the amount of time he spends on these duties. If the Class Standard had meant to put a temporal limitation on this function, they would have utilized such words as “occasionally” or “infrequently”. The use of the word “may” does not put a time limitation of these duties, it is rather meant to be permissive, so that a person can still be a Technician 3 Survey even if he doesn’t have these supervisory responsibilities. However, the Class Standard clearly contemplates that this supervision and training will be of ‘hmior members of the party”, that is, of Technician 1 and 2. The grievor, however, based on the assumed statement of facts, supervises Technicians 3s, which is not contemplated by the Class Standard. The evidence is that he spends two days per week supervising the work of other Technician 3s, however not as a party chief would supervise them. -5- However, given that we did not hear any evidence up to this point on the issue of the nature of the supervision of these Technician 3s, we cannot tell whether there is any substantive difference between the grievor’s supervision of the Technician 3s and the “supervision and training of junior members of the party’ as contemplated in the Class Standard. In other words, if the degree of training, responsibility or complexity required by the grievor to supervise Technician 3s is similar to or les:s than what is required to supervise junior members of the party, then clearly a Berry order i:s not appropriate as there must first be a substantial variation in either the nature or scope of the duties performed by the gri~evor from that set out in the Class Standard, and secondly, there is no other Class Standard which reasonably describes the functions that are carried out by the grievor. This test was set out in Booth 192/90, Vice-Chairman Lowe. Therefore, even if we find that the grievor does supervise Technician 3s to the degree set forth in the Agreed Statement of Facts th,ere is not sufficient evidence be:fore us at this time to determine whether or not that would properly result in a Berry order. Therefore, it is appropriate to reconvene this hearing to hear evidence on two issues, firstly, as to the nature of the supervision that the igrievor exercises in comparison to the nature of supervision exercised by Technician 3s with respect to junior members and secondly, to determine the appropriate percentage of time that the grievor spends in supervision. The parties are therefore to contact the Registrar to set up a new hearing date and this panel shall remain seized. DATED at Toronto this 3oday of nay ~, 1991. M. O’TOOLE , Member APPENDIX “A” 12904 TECHNICW 3, SURVEY CLASS DEFINITION: This class cover8 e&ployees who act ae renior chainmas for a legal land surveys, They obtain precise Hnear meorurements, assist in taking astronomical observationr , aseiat with title searching in the registry office and plot InformatIon from field notes or deeds. OR These empfoytes act as transitman and levelman on enginserin~rveys, without detailed instructions, on all routine phases of the work, ta&g field notes for alignment, topography, profiles and cross-sections. GR These cmp1oys.ss ta&e .charge, of~a-.sub-party ,working on a Itmited poxn __. -. ~. . of s,.construction contract. They carry out control surveys for the ‘precise setting of alignment and elevations of new con+ruction and use standard eurwy techniques foi the measurements of quantities. A completing level circuits, .laying out complex hooking field notes in a standard manner. computing quantities of material8 including complex shapes in concrete structures; Twseist in the supervision and training of junior members of the party end naa~ac~&rt~chi~e$ reguI;edy -.~ ...~~_ __~ _ .z-..~~~..- -.; QUALIFICATIONS: 1. Grade 12 or an equfMlent combinstion of education and experience. 2. Two years’ experience and successU completion of the departmental examination O&three yeara’ experience where an examinatton does not exist. 3. Good physical condition. M&y 1965 ,