HomeMy WebLinkAbout1988-0760.Kentell.91-04-18 ONTARIO EMPLOYES DE LA COURONNE
'; CROWN EMPL 0 YEES DE L 'ONTA RIO
C GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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760/88
IN THE HATTER OF iN ]tRBITI~ATXON
Under'
Before
~E GRI~CE SETT~~ BO~
BETWEEN
OPS EU (Kentel 1 ) Gri evor
- a~d -
The Crown in Right of Ontario
(Ministry of Natural Resources)
Employer
BEFORE: J. McCamus Vice-Chairperson
A. Stapleton Member
FOR THE C. Dassios
GRIEVOR Counsel
Gowling, Strathy & Henderson
Barrister & Solicitors
FOR THE D. Costen
EMPLOYER Counsel
office of Legal Services
- Labour Relations
Ministry oz Treasury ana
HEARING June 29, 1989
July 20, 1989
Decision
The Grievor is a Private Land Forestry Technician employed in
the Forest Management office for the Cornwall district, one of four
districts in the .Employer's Eastern Region. The Grievor is
classified as a Resource Technician Senior 1 (RTS 1). The Grievor
seeks reclassification to the management'classification of TM 14
or, alternatively, as a Resource Technician Senior 2 (RTS 2).
Obviously, the Grievor's preference is to reclassified to the
former classification, rather than the latter. In the further
alternative, should the Grievor not enjoy success with respect to
either TM 14 or RTS 2, the Grievor seeks an order simply directing
that he be properly classified.
With respect to the claim for a reclassification as TM 14, the
Union makes a "usage" argument. The Union maintains that the
Grievor's counterpart in the Carleton Place district, also within
the Eastern Region, performs essentially the same functions as the
grievor and is classified as a TM 14. The individual in question,
Milt Stewart, testified in these proceedings. Stewart's job
description was filed as Exhibit 5. Evidence concerning Mr.
Stewart's responsibilities was also provided by Mr. Brian Barkley,
the Regional Forester for the Eastern Region.
_ With respect to the alternative claim for a reclassification
to RTS 2, the parties appear to be in agreement with the
proposition that the important distinction between the two class
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standards for present purposes relates to the presence or absence
of a duty to engage in "long range operational planning". The
Resource Technician, Senior Series Class Standard was filed in
these proceedings as Exhibit 3. The opening paragraph for the RTS
1 Standard reads as follows:
This class covers positions of employees responsible on
a district-wide basis for technical control of a sub-
service; OR who act as a senior assistants to district
technical or professional specialists in determining
methods and techniques, implementing policy and
controlling standards in one or more services on a
district-wide basis.
The opening paragraph of the RTS 2 Standard, on the other hand,
provides as follows (emphasis added):
This class covers positions of employees responsible on
a district-wide basis for technical control and lo_gruq
range operational Dlannin~ of a sub-service, OR who act
as the senior assistant to district technical or
Professional specialists in determining methods and
techniques, implementing and interpreting policy,
controlling standards, preparing long range operational
plans and developing new policies for all sub-services
in one or more services on a district-wide basis.
Although there are other differences between the wording of the RTS
1 and RTS 2 standards, they'do not appear to be material to the
present dispute. The position advanced by the Union, which was
not seriously challenged by the Employer, was that if it could be
established that the Grievor Was engaged in "long range operational
planning", the Grievor would be entitled to reclassification at the
RTS 2 level. The Preamble to the Resource Technician Senior Series
Class Standards defines "Long-range Operational Planning" in the
following terms:
Planning involving participation of field offices and the
Head office in the setting of Regional and/or District
objectives; developing and establishing alternatives for
meeting these objectives; analyzing these alternatives;
recommending the course to follow; etc.
The Preamble also defines the term "Sub-Service" as follows:
Functional field equivalent of a Ministry Branch, e.g.
Forest Management, Mineral Resources Management, Wildlife
Management, Parks Management, Fire Control, Lands
Administration.
Needless to say, it is the Union's position that the Grievor is
extensively involved in long range operational planning and it is
the Employer's position that he is not. Before turning to consider
the evidence concerning the responsibilities of the Grievor and
those of Mr. Stewart, we may note that there is a connection
between the Grievor's alternative claims to reclassification either
as a TM 14 or as an RTS 2. It is argued by the Union that there
are certain activities engaged in by Mr. Stewart, which are
considered by the Employer to be of a long range operational
planning nature, which are identical in nature to responsibilities
carried out by the Grievor. We shall return to this point.
The job description f~r the Grievor's position as Private Land
Forestry Technician, which appears to be accepted by both parties
as being an accurate description of his .position, describes the
purpose of this p~ition and the duties and related tasks in the
following manner:
Purpose of Position
_ Annually, to plan, organize, promote and control the
Private Land Forestry Program throughout the District by
providing a forest management service to landowners.
This position also plans, directs and audits a tree
planting program of approximately 2 million trees.
Duties and related tasks
Preamble: The program includes the preparation of over
85 WoI.A. agreements, 500 other plans, 3,000 public
contacts and the planting of 2 million trees.
1. - Prepares annually the Private Land Forestry plan in
consultation with 'his supervisor. This plan
includes budget requirements, work locations and
schedules, staffing, communications programs and
20% sets standards of performance and quality.
2. - Co-ordinates and audits the District Private Land
(a) Forestry Program by assigning and co-ordinating
staff, preparing tenders and recommending awarding
of contracts, auditing projects, preparing reports
and tax audits, reviewing and recommending
silvicultural prescriptions, exercises budget
40% control of his program' and is responsible for his
expenditures.
(b)- Plans audits and assists in the execution of
silvicultural and harvesting programs on private
land in the District.
(c)- Provides technical expertise on the Private Land
Forestry program by assisting the Management
Forester in developing long range private land
management plans, directing the preparation of
W.I.A. plans, analysing site, growth and yield data,
prouiding technical and administrative guidance,
expertise and training.
(d)- Supervises staff by reviewing and assessing work
performance, undertaking performance appraisal
interviews, e~tablishing work schedules, hiring
unclassified staff and taking or recommending
disciplinary actiOn as required, recommending formal
training.
3. - Plans, coordinates and audits the District tree
planting projects by planning the program, preparing
tenders, recommending awarding of contracts,
25% assigning and supervising staff, negotiating with
and auditing contractors, authorizing payments,
controlling expenditures and preparing reports.
4. - Promotes PLF by directing an intensive
(a) communications program through the new~ media, by
appearing at community events and various related
activities.
(b)- Promotes integrated resource management on private
lands within the District and evaluates the
potential of sites for wood production, wildlife
habitat, agriculture, erosion control, aggregates
and .other land uses in consultation with other
services and government agencies.
(c)- Acts for supervisor in his absence and performs
15% other duties as assigned.
(d)- Carries out the duties and responsibility as
described in sections 13 to 19 and section 23 of the
Occupational Health and Safety Act.
(The lettering of the sub-paragraphs does not appear on
the original form but was added by the Grievor in order
to facilitate a comparison with the job description of
Mr. Stewart, a matter to which we will turn in due
course)
The principal responsibility performed by the Grievor which is
relied upon by the union has the basis for reclassification either
to TM 14 or to RTS 2 ~is his responsibility for the negotiation of
Woodlands Improvements Agreements ("WIA contracts")~ under the
Woodlands Improvements Act. These agreements are entered intowith
private land owners for the purpose of facilitating reforestation
or the regeneration of existing forests. With respect 'to such
agreements~ the Employer supplies certain services concerning
planting of stock and maintenance of the forest. The land owner
obtains the advantage of being able to enjoy the profits which
result from the ultimate sale of the trees grown on his or her
land. These activities are undertaken by the Employer in order to
secure certain public benefits such as the generation of wood
cover, the prevention of soil erosion, flood control, the creation
of natural habita~, the creation of recreational areas and the'
creation of employment opportunities of various kinds. The tree
planting program within the district is conducted on private lands
through the WIA contract program. The Grievor estimated that
something in the order of 90 percent of all of the tree planting
in the district was conducted on private lands. On an annual
basis, the Grievor supervises staff involved..in this program. He
contacts land 'owners that may have expressed an interest in a WIA
agreement. The Grievor's staff would consult with the land owner
and draw up a draft plan for the management of the property under
such an agreement for fifteen years. The draft agreement is
prepared under the Grievor's supervision and ultimately, with his
approval. The Grievor would, in reaching the conclusion to approve
a draft proPOsal, consult with various relevant parties. Thus, he
would consult with the Ministry of Agriculture and Food with
respect to the question of whether that Ministry would favour some
other use for the land, and so on. It is important to note that
the Grievor is obliged to consult one of the district's Management
Foresters, R.W. Stokes. The Management~Forester would review the
proposed agreement with the same sorts of concerns in mind as the
Grievor. Having consulted appropriately, the Grievor would
.prepare a final version of the contract which would be typed up and
then signed by the land owner and forwarded to the District Manager
for signature on behalf of the Employer. It is important to note
that the Management Forester who provides advice with respect to
WIA agreements does not act in a supervisory capacity ~ith respect
to the Grievor's work. The Grievor does not report to the
Management Forester. Although this has not happened in the
Grievor's experience, the Management Forester could, however,
suggest amendments to a WIA agreement. If the Grievor did not
agree with any such suggestion, the matter would have to be
resolved further up the administrative hierarchy. The Grievor
directly reports to the District Operations Coordinator, W.A.
Marvin, who is classified.at the TM 14 level. Mr. Marvin has, in
fact, no role in approving WIA agreements prepared by the Grievor.
In the event of a controversy between the Management Forester and
the Grievor, the matter would be resolved by the person to Whom Mr.
Marvin reports, the Forest Management Supervisor, Mr. Barry
Warwick. In' the normal course - indeed, in every case as far as
the Grievor's experience is concerned - the WIA agreement
negotiated with and signed by the land owner in question is simply
forwarded to the District Manager, to whom Mr. Warwick reports, for
a signature. Again, in the Grievor's experience, that signature
has always been forthcoming.
There can be no doubt that the Employer's obligations Under
WIA contracts are both burdensome and long-term in nature. The
agreements, themselves last for fifteen years. The EmplOyer
acquires ongoing obligations with respect to maintenance, pest
control and so on. Regular inspections are undertaken. Various
measures, including replanting, may be required to deal with
problems in particular forests. The forest management program on
private lands is a substantial budget item for the Employer. The
tree planting program run out of the COrnwall office is implemented
and coordinated by the Grievor both in the private lands sector and
in the public lands sector and the total tree planting budget alone
amounts to approximately $ 350,000.00 per annum. Both the planting
and the maintenance obligations assumed under ~he WIA agreements
9
carry on into the future. The planting process itself may take up
,to four years. Various maintenance responsibilities can extend
throughout the entire fifteen year period of the agreement.
Further, there appears to be no question but that the Grievor is
essentially responsible for planning and directing forest
management on private lands in the Cornwall'district. As the
Grievor himself cOncedes, the budgetary commitment to this program
is determined by others, more particularly, by Mr. Marvin and Mr.
Warwick. Nonetheless, within that budgetary constraint, decisions
with respect to priority have been made essentially by the Grievor.
His decisions with respect to the sites to be developed,, the kind
of development to tak~ place and the amount ofmoney to be invested
in a particular site are subject to review and ultimate approval
by others. Nonetheiess, the evidence is that his determinations
with respect to these matters have been invariably approved.
Moreover, while it is no doubt the case that the Grievor's
decisions with respect to such various matters as are revealed on
the face of the proposed WIA agreement are subject to the scrutiny
of others, there is no evidence to suggest that the Grievor's
judgement~with respect t~ such questions as site selection or other
matters that would be contingent upon knowledge of the subject site
or sites over-which the particular site is given priority are
subject to routine scrutiny by 'his supervisors.
The Union argues that the Grievor's effective responsibility
for negotiating WIA agreements is precisely parallel to Mr.
Stewart's responsibilities in Carleton Place and thus strengthens
his claim for reclassification to TM 14, the classification
currently enjoyed by Mr. Stewart. As we shall see, the Employer
responds by attempting to identify significant differences between
· Mr. Stewart's responsibilities and those of the Grievor.
Alternatively, the Union argues that the Grievor's responsibility
for WIA agreements constitutes an involvement in long range
operational planning and thus entitles him to reclassification as
an RTS 2. The Union contends that the forestry management exercise
on private lands for which he is effectively responsible is a large
operation, that it requires considerable long range planning and
that this planning is undertaken by the Grievor, albeit in a
fashion which requires him to consult with Others and which
requires that ultimate approval be given by the District Manager.
The Employer responds, in part, by suggesting that the Grievor's
responsibilities in this regard do not constitute "long range
operational planning" in the requisite sense and further, the
Employer emphasizes that there is long range operational planning
of various kinds undertaken by the Management Foresters with
respect to which the Grievor has little or no involvement. We are
satisfied that the evidence led does in fact firmly support the
latter proposition. Thus, twenty year plans are developed for
forest management in the crown lands by.a Mr. Stokes and for so-
call~d "agreement lands", with respect to which the Employer
normally makes commitments which will endure for twenty-five years,
by Wilson. Further, Stokes is responsible for deueloping fiwe year
11
forecasts which attempt to assess the need for planning stock of
various species. This information is used, in turn, to facilitate
long term planning within the Employer's nursery system. The
Grievor's involvement in the five year forecast process is simply
one of providing information to Stokes that is necessary in order
to facilitate his preparation of the forecast. Stokes also has
planning responsibilities related to the Domtar project,' a matter
which need not be further explored here. While the Union
acknowledges that.there are indeed other planning activities of
this kind undertaken by the Management Foresters, the Union
emphasizes that Management Foresters do not develop long range
plans for forest management on private lands. The only long range
planning undertaken with respect to activity on those lands is
undertaken through the device of the WIA agreement, a planning
instrument which reSts essentially in the hands of the Grievor.
We agree with the.Union that the critical question is whether the
Grievor's involvement in planning forest management on private
lands constitutes "long range operational planning" for purposes
of the RT$ 2 standard.
In attempting to answer this question, it will be helpful to
consider the nature of the responsibilities undertaken by Milt
Stewart, the Grievor's alleged counterpart in the Carleton Pl'ace
district. We must examine Mr. Stewart's situation for the
additional reason that it is necessary to do so in order to explore
the Union' s submission that the Gr ievor is entitled to
12
reclassification to the TM 14 level. Mr. Stewart was classified
as TM 14 on February 1st, 1987. Prior to that time, he had been
classified as an RTS 1 and the evidence indicates that it was the
reclassification of Mr. Stewart at that time that led 'the Grievor
to consider his own situation and to seek a reclassification of his
own position. It is perhaps not surprising that Mr. Stewart's
reclassification provoked this reaction. Prior to February 1st,
1987, there were two RTS l's working in the Carleton Place
district, one of whom was Mr. Stewart. The other RTS 1
unfortunately became ill and ultimately died in the summer of 1986.
Subsequently, the RTS I work was restructured and Mr. Stewart
became responsible, for all forest management on private lands and
thus acquired a responsibility which, in this respect at least, is
similar to that. shouldered by the Grievor. This fact, together
with the fact that, according to the Grievor's evidence, the
overall tree planting programs are planned and implemented in the
other districts by TM 14's, appears to have provided a good part
of the impetus for the Grievor's thinking that he ought, in
fairness, be classified at the TM 14 level as well. When a closer
examination of Mr. Stewart's overall responsibilities is
undertaken, however, it is apparent that a number of differences
between the Grievor's assignment and that of Mr. Stewart emerge.
Mr. Stewart's job description was filed in this proceeding as
Exhibit 5. The portions of the description setting out the
"purpose" of his position and his "major responsibilities" are set
out below. The numbers in brackets on the left hand margin are
13
corresponding paragraphs in the equivalent portions of Exhibit 4,
the job description of the Grievor, which the Grievor believes are
parallel to the description of responsibilities of Mr. Stewart.
Purpose of Position
To assist the Forest management Supervisor in
ordinating'the~Forest Management Program on private land
for the entire Carleton Place District, through planning
and control of field staff, budgeting and auditing of
work program. To budget,'audit and liason with agencies
undertaking Private Land Forestry Program under M.N.R.'s
direction
Statement of Major Responsibilities
1. Plans, co-ordinates, executes, audits and keeps
(1+2c) records on the District's Private Land Forestry
Program by preparing long range operating plans and
annual plans to meet the District's targets and
objectives on private land.
2. Plans, audits and assists in the execution of the
(2b) silviculture and harvesting program on private land
in the District~
3. Budgets, audits and provides silvicultural advice
(2a,3) to other agencies undertaking the Private Land
Forestry management Service, subsidized by O.M.N.R.
~or lanaowners in the jurisdiction ie. Rideau
Valley Conservation Authority
4. Supervises and motivates staff by assessing
(2a+2d) priorities, assigning work, training staff,
recommending merit increases and disciplining as
required.
5. Prepares annual work plans and budgets for the
(1) private land program in .'the District for the
supervisor's approval.
6. Prepares a variety of private land forestry reports,
(2a) tax audits, silvicultural procedures etc, and makes
recommendations when required.'
7. Keeps the Forest Management Supervisor and foresters
(1, 2c) informed on changes in the Private Land Forestry
Program (~g. policies, procedures and tax rebate
8. Liason with other Ministries and interest groups,
(4b) eg. Ministry of Agriculture and Food, Ontario Maple
Syrup Producers Association
9. Promotes the Private Land Forestry Program through
(4a)_ participation in public meetings, Ontario Maple
Syrup Producers Assoc[i]ation, 4H Clubs,
Agricultural Field Days, Windbreak meetings, Field
days'and associated activities.
10. Audits privatization of forest management practices
(2b, 3 on private land eg. planting, stand improvement,
preamble) harvesting, marking, assessments, site preparation
and writing of Woodlands Improvement Act Agreements.
11. Provides training courses for staff in Sugar Bush
(2c, 4b) Management for Maple Syrup Producers,. marking and
site evaluation for tree planting.
12. Enhances Private Land ForeStry Program by developing
(2b) new markets and better utilization of forest
products through the district's private land timber
sale program.
13. Performs other related duties - acting for Forest
(4c) Management Supervisor during his absence, serving
on committees, task forces, etc. as required.
14. Ensure that workers take precautions to protect'the
(4d) health and safety of themselves and others by
complying with such acts, codes, policies,
procedures or accepted practices as may be
appropriate. Ensure that workers ~re advised of
known hazards and the required precautions.
When .one compares the statement of major responsibilities of the
Stewart job description with the paragraphs in the Kentell
description indicated in the bracketed annotations, it is obvious
that there are indeed striking parallels between responsibilities
of Mr. Kentell and Mr. Stewart. Put simply, the Grievor's point
is that he functions ·as the co-ordinator of private land forestry
in the Cornwall District. As Mr. Stewart's job title indicates,
that is essentially the function he performs at Carleton Place and
the Grievor sees no reason why he should not have the benefit of
the same classification as that of Mr. Stewart's position. ·
· From the Em~/oyer's perspective, there are a number of
important differences between Mr. Stewart's current assignment and
that of the Grievor. The correct parallel, it is argued, would be
between the Grievor's job and Mr. Stewart's responsibilities prior
to February 1st, 1987. Prior to that time Mr. Stewart was
responsible for what was essentially WIA contract work in the
15 '
Lanark area which constituted half of the Carleton Place District.
Although Stewart's assignment at that point was not district-wide,
the work was in other respects allegedlyparallel to the Grieuor's
current assignment. When Mr. Stewart"s responsibilities became
district-wide on February 1st, 1987, it is alleged that a number
of other important changes occurred. Thus the Employer relies on
the following items as being the most important differences between
Mr. Stewart's current assignment and that of the Grievor. First,
Mr. stewart reports directly to the Forest Management Supervisor,
that is to say to Mr. Warwick's counterpart in Carleton Place,
rather than, as is the case with the Grievor', to a District
Operations Co-ordinator. More importantlY, it' is part of Mr.
Stewart's responsibilities that he fills in for the Forest
Management Supervisor in his absence. It was Mr. Stewart's
'evidence that he effectively performs the Supervisor's functions
during that period of time, which represents about ten percent of'
his workload, and does not-merely "handle phone-calls" in .the
Supervisor's absence. The Grievor, on the other hand, reports to
a person who, in turn, reports to the Forest Management Supervisor.
Secondly, it is argued by the Employer that the.private lands
forest management program at Carleton Place'is more complex and
more demanding than the Cornwall operation. In particular, a
significant portion of the private lands program is.undertaken by
the Rideau Valley Conservation Authority. Mr. Stewart is
responsible for relations with the Authority. Within the areas
16
with respect to which Forest Management has been delegated to the
Authority, the Authority functions more or less in the manner of
the Grievor. It negotiates and implements WIA agreements. Thus,
Mr. Stewart is involved in supervising the work of a certified
forester who is employed by the Authority. Stewart is responsible
for a budget of approximately $100,000.00 which is allocated to the
Authority. Stewart must develop relations with the agency staff,
supervise and a~dit their work. As well, Stewart is very much
involved in any decisions made with respect to the extension of the
Authority's activities into new areas. Mr. Barkley, the Regional
Forester, indicated in his evidence that he viewed the handling of
relations with an external agency of this kind to'be a
significantly more difficult matter than simply doing WIA work on
one's own. It definitely ~equires, he said, a senior person.
Thirdly, the Employer places some emphasis On the fact that
there is no Management Forester involved in the private lands
forest management program in Carleton Place. The Grievor's work,
on the other hand, is, in effect, is vetted by a Management
Fores%er. Although it may well be true, the Employer concedes,
that the Management Forester in question has never recommended a
change in a WIA agreement negotiated by the Grievor, the Employer
suggests that this is simply evidence of~the fact that the Grievor
is ~ery good at what he does. Nonetheless, no similar review is
undertaken of Mr. Stewart's work. He simply approves his own WIA
agreements and sends them directly to the District Supervisor for
17
signature.
The Employer argues that there are a number of other
differences between Mr. Stewart's responsibilities and those of the
Grievor that may be of less ~importance but that nonetheless
strengthen the case for holding 'that there are significant
differences between the two positions. Thus, for example,
paragraph 10 of the Stewart description assigns him responsibility
for auditing certain forest management ~practices. In Cornwall,
that responsibility is divided between the Grievor and Mr. Boileau.
Further, Mr. Barkley testified that the two districts have
different characteristics that create different kinds of workloads.
For example, Carleton Place is a much more urban district. This
means that there is greater developmental pressure on land as a
result of urban expansion. This complicates the exercise of
private lands forest management and requires some contact between
· the responsible party and the municipalities in question. Further,
the forests on p~ivate lands in the Carleton Place District are on
average much more mature than those in Cornwall. Thus, Mr. Stewart
is much more involved in contact with land owners concerning
harvesting and marketing of wood. The Grievor, on the other hand,
is much more involved in planting. Of the two activities,
harvesting and marketing pose greater problems for the Employer.
Similarly, there are many more forests in Carleton Place being
managed for maple syrup production. Again, this is a more
complicated matter than the more normal planting and maintenance
- 18
of forests for other purposes. In addition, Mr. Stewart supervises
a slightly larger staff, an so on.
We have come to the conclusion that the Employer's evidence
and submissions on this point are persuasive. We find that there
are, indeed, significant differences between the responsibilities
of Mr. Stewart and those of the Grievor. On FebruarY 1st, 1987,
Mr. Stewart acquired a broader range of responsibilities in such
areas as budgeting, auditing and dealing with an external agency.
As well, he was located further up the supervisory hierarchy and
given responsibility for sitting in for the Forest Management
Supervisor. These changes and the other differences between the
responsibilities of Mr. Stewart and the Grievor noted above make
it impossible, in our view, to sustain the argument 'that the
Grievor's responsibilities are so similar to those of Mr. Stewart
that the Grievor is entitled to the same classification.
We return, then, to consider the alternative submission made
on behalf of the Grievor, that is that the Grievor's involvement
in "long-term operational planning" is such that he is entitled to
reclassification at the RTS 2 level. On this point, we find the
evidence concerning Mr. Stewart's involvement in planning
confirmatory of our own view which is t~ the general effect that
the ~nion has made out a persuasive case on this point. Although,
as indicated above, private land forestry management in Carleton
Place is organized somewhat differently from the organization in
the Cornwall district, there is an important parallel with respect
to planning in this area. In Carleton Place, rather than relying
-as is the case in Cornwall - exclusively on WIA agreements as the
vehicle'for forestry management on private lands, three devices are
employed in Carleton Place. In addition to WIA agreements and the
above mentioned arrangements concerning the Rideau Valley
Conservation Authority, Mr. Stewart is also involved with Advisory
Services Agreements entered into between the Employer and private ,
land owners for fifteen year periods which appear to be. Similar to
WIA agreements with the important difference that the land owner
assumes the responsibility to carry out the work outlined in the
Agreement at his or her own expense. Thus, in Carleton Place, the
planning undertaken by Mr. Stewart with respect to Forestry
'Management on private lands is constituted by three sources, his
own. work on WIA agreements, his work with the Rideau. Valley
Conservation Authority and his work on Advisory Services
Agreements. Although the devices 'are more varied, the planning
exercise itself 'in Carleton Place is thus very similar to that
undertaken by the Grievor in Cornwall~. Forward planning for
private lands forestry management is constituted by a process of
negotiating a series of long term arrangements with the individual
land owners and, in the case of Carleton Place, additionally
through supervision of an external agency negotiating 'similar
arraDgements. It is of. some interest, then, that in paragraph one
of Exhibit 5, Mr. Stewart's job description, these planning
exercises are referred to by the phrase, "preparing long-range
operating plans". The evidence on this point is clear. The
"operating plans" in question are those planning exercises
undertaken by Mr. Stewart which are directly parallel to the long-
range planning undertaken by the Grievor in Cornwall. In Carleton
Place, as in Cornwall, this is the only type of long-range planning
that takes place with respect to forestry management on private
lands. The fact that this activity is referred to in this fashion
in Mr. Stewart's job description confirms our own view that the
phrase "long-range operational planning" should be interpreted as
referring to this type of planning exercise, among others. The
Employer objects, however, that the reference to the "long-range
operational planning" in the RTS 2 standard refers to the planning
"of a sub-service". Counsel for the Employer argued that private
lands forestry management is not a "sub-service" in the requisite
sense. We do not find this persuasive.' Presumably, the Employer
would 'be obliged to concede that the planning of forestry
management on all lands within the Cornwall district would
constitute planning for a "sub-service" or, in the language of the
final phrases of the opening paragraph of the RTS 2 standard, the
development of plans "for all sub-services in one or more services
on a district-wide basis". The evidence before us, however,
indicates that planning in this area is not undertaken on such a
basis. Rather, one person is responsible for long-range planning
with_respect to crown lands, another is responsible for planning
with respect to agreement lands and a third, the Grievor; is
responsible for long-range operational planning with respect to
21
forestry management on private lands on a district wide basis. No
evidence was led in this proceeding which suggested that this
language should be given anything other than its normal and plain
meaning. In the Cornwall operation, private lands forestry
management appears to be conducted as a "sub-service" of a larger
service of forest management. It is therefore our view that in the
context of the Cornwall operation, the planning of all forestry
management on private lands on a district wide basis meets the
requirement of "long-term operational planning" set out in the RTS
2 class standard. Accordingly, the GrieVance must, in our view,
enjoy success on this ground.
It remains, then, to consider the submissions of the parties
with respect to the degree of retroactivity w~ich is appropriate
with respect to the present award. It has been argued on behalf
of the EmplOyer that there is no reason in the present case to
depart from the normal rule of granting retroactivity ~o a period
commencing twenty days before the filing of the Grievance. The
Union, on the other hand, takes the position that once informal
attempts were made by the Grievor to resolve the question of his
classification, the retroactivity period should be considered to
commence. Otherwise, the application of the twenty day rule in
such a case would put a premium on the filing of grievances and
woukddiscourage attempts at informal dispute resolution. Although
counsel for both parties have relied upon Previous decisions of the
Grievance Settlement Board which may be thought to yield
conflicting signals with respect to this issue, we think these
differences are easily resolved in the present case if one accepts,
as we do, the evidence of the Grievor concerning the nature~of his
discussions with representatives .of the Employer in November of
1987. When the Grievor became aware of Mr. Stewart's
reclassification, he went to his .superiors in order to seek a
similar reclassification for himself. It was the Grievor's
evidence that although he realized that his superiors did not have
the authority to reclassify him or to create expectations in this
regard, he did understand them to be somewhat sympathetic to his
situation. They participated in the exercise of drafting a new. job
description for the Grievor,.Exhibit 6 and, on November 20th, 1987,
forwarded this job description, with which they were understood to
be in agreement, to the region coupled with a request for
consideration for a reclassification. It was the Grievor's
evidence that at that point he was advised either by Mr. Marvin,
Mr. Warwick or Mr. Cleroux that it would not be appropriate to file
a grievance until he received a decision ~rom the Region with
respect to the requested reclassification. It is our view that
the Grievor's evidence was credible and can be relied upon without
difficulty an the absence of evidence to the contrary.. Of the
three individuals mentioned by the Grievor as possible candidates
for having given him the advice that it would be inappropriate' to
file_ a grievance, only Mr. Warwick testified. Mr. Warwick's
evidence was not necessarily inconsistent with that of the Grievor.
It was Mr. Warwick's evidence that although he could not say that
23 ~
he would have expected a grievance in the event that the attempt
at reclassification failed, the thought of a grievance is "always
there" in a situation of this kind. Although it was his view that,
at least when the Grievor first raised the matter, the possibility
of a grievance was not discussed, we do not understand it to be Mr.
Warwick's evidence that the possibility could not have been
discussed by the Grievor with either Mr. Marvin or Mr. Cleroux.
Accordingly, we are satisfied that the Grievor indicated, somewhat
prior to November 20th, 1987, that he felt that. his own situation
was unfair in the light of the reclassification of Mr. Stewart's
position. Further, we are satisfied that on November 20th, 1987,
the Grievor was advised by one of the three individuals mentioned
by him that since a request~for reclassification was going forward,
it would be inappropriate to file a grievance at that point in
time. A decision from the Regional office was not received for
several months. The decision ultimately communicated to the
Grievor was that the request had been denied. After he had
received the rejection of his .application, he filed a grievanCe
within a few weeks.
Against this background, even if we accept the Employer's
argument that in order to justify retroactivity one must be able
to find grounds for holding that the Employer is estopped from
relying on the twenty day rule, we are satisfied that such an
estoppel is Created in a situation such as the present. The
Employee had indicated that he believed that he was being unfairly
treated in a manner which would-clearly involve a breach of the
Collective Agreement. His superiors indicated to him that he
should attempt to resolve the matter through the processing of an
application for reclassification and, further, that it would be
!
inappropriate, in the interim, to grieve. An estoppel is created
in such circumstances. To the extent necessary for us to do so,
we are in any event persuaded by the reasoning in OPSEU (Sabo) v.
Ministry of Community and Social Services 777/86 (Dissanayake) to
the effect that it is not necessary to a holding that retroactivity
can extend beyond the twenty day rule to find that the Employer has
made a representation that it agreed with the Grievor'$ complaint.
We also agree with the decision made in that case at pages 26-27
that "Not every informal discussion of a classification complaint
is sufficient to entitle a Grievor to retroactivity. There must
be evidence that the Employer was made aware expressly or tacitly,
that the employee is contemplating the filing of a grievance if the
outcome of informal procedures is not satisfactory". There could
not be better evidence of an awareness of this kind on the
Employer's part if advice is given to the effect that it would be
inappropriate to file a grievance at this point in time.
Accordingly, we hold that in the present case, the Grievor is
entitled to retroactivity back to November 20th, 1987. We further
agree with the Union's submission to the effect that interest on
the_usual terms should be awarded to the Grievor.
In summary, we find that the Grievor is entitled to
25
'reclassification at the RT$ 2 level. The new classification should
be retroactive to November 20th, 1087. The Griever is entitled to
interest on the usual terms. The Board ~emains seized of
jurisdiction in the event that the parties should encounter
difficulty in the interpretation or implementation of this
Decision. :'
Dated at Toronto, Ontario this i8th day of April , 1991.
~J ohn~/I.' cCamus -
~JVice-Cha '~erson :
'/ A. Sta~letor~, Member