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HomeMy WebLinkAbout1988-0803.Alexander et al.90-12-07 ONTA RJO EMPLOYf~S DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE CQMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ?80 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5~ lZ~ TELEPHONE/TELEPHONE: (4 ~6) 326-1~8~ ~80, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTAFUO]. MSG IZ8 FACSJMILE/T~L~COPIE .' [4;6) 326-1396 803/88, 850/88, 920/88, 1156/88, 1293/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTI%~B BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Alexander et al) Grievor - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFORE: R. Verity Vice-Chairperson I. Thomson Member D. Montrose Member FOR THE N. Roland GRIEVOR Counsel Cornish Roland Barristers & Solicitors FOR THE D. Francis EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING: May 28, 1990 October 24, 25, 26, 1990 DECISION This matter involves one of 11 grievances filed by contract inspectors, employed by the Property Management Division of the Mtnistry's London District. The grievances filed involved three categories of contract inspectors (general, mechanical, electrical). All grievances allege misclasslfication as Services Officer 1. ': 3ce Liebregts is certified as a carpenter and is employed as a contract inspector-generai in the repair and improvement division of the London District. Untii 1987 he h~id the position of contract Inspector/construction superintendent and was classified as Construction Superintendent 2. In 1987 he was reciass~fied upwards, on an atypicaI basis, as Services Officer 1 and was given the position titIe of contract Inspector-generai. The reeiassification was a recognition by the EmpIoyer of the "equivalent".responslbiiities of the grIevor's position and contract inspectors mechanicai and eIectrical. The atyplcaI aliocation was given because "the ciassification standard was assigned to cover positions where the primary function !nvoIved mechanical or eleetrlcai systems and equipment". In a grievance dated April 27, 1988, Mr. Liebregts seeks proper classification as Construction Superintendent 3 with full retroactive wages and benefits plus interest. However during final submission, the Union acknowledged that the Construction Superintendent class standard was not applicable. The remedy requested was a Berry type award or reclassification as Services Supervisor 2. - 3 - The hearings ~roceeded solely on the '~lass standards approach - the measurement of the grtevor's job against the wording of the applicable class standards. The grievor testified at some length as to the extent of his duties and responsibilities. Essentially, the grievor's job involves the project planning and implementation, co-ordination, administration and inspection of renovation and/or repair of ~onstruction projects in government owned and occupied buildings in the London district. He is required to estimate job costs, to arrange for contractors, to inspect and assess acceptability of contractor's work and to recommend acceptance or rejection of claims in excess of tender. The grtevor's expertise in general trade-work includes structural, concrete, carpentry, plastering and minor aspects of electrical and mechanical work. However~ the grlevor is not certified as either a mechanic or an electrician. Mr. Liebregts testified that he was the prime co-ordinator on 50 projects running simultaneously, in various phases, with a total aggregate dollar value of $2,000,000.00. The grievor acknowledged that a 1987 job specification and class allocation form accurately reflected most of his duties. That document (Exhibit 15) reads in material parts: Duties and related tasks: 1. Liaises with Property Manager, Client Ministry Designee, Design Staff'and Supervisor ensuring ail contract requirements are met by performing such tasks as: - Program and Project Planning and Implementation: - conducting annual inspeetlon of buildings; - preparing list of projects for District repair programs; - providing scope of work requirements after consultation with - 4- Property Manager and Client Designee and advise on 35% feasibility; - preparing pre-tender estimates; - providing design assistance to develop plans and specifications; - review completed contract documents; - obtaining all permits; - conducting pre-tender site visits and responding to any queries; - recommending award of tender; 2. Co-ordinates the constructiod progress to ensure smooth occupation by CIients, by performing tasks as: - Inspection and Administration: - arranging site meetlng with Geheral Contractor to establish procedures and review of contract documents; - reviewing construction scheduIe with contractor, mutuaiiy 60% ag?eeing to acceptabie scheduIe for the carrying out and completing of the work; - conducting detatied site inspections and preparing reports; - monitoring and recording progress and setting up meetings for remediai action in case of deIay; - ~aintaining compIete and accurate documentation on project and issuing directions in accordance with contract documents; - requesting a~slstance and direction on technicai issues from Supervisor; - attending pro~ect site meetings and other meetings as required, reviewing minutes and foiIowing up with action required, ensuring contract requirements are met; - reviewing progress biliing and recommending approval of payments; - reviewing proposed changes to the contract to ensure necessity of change, initiating Change Notice and have Contractor provide quotation; - reviewing and providing initial check of Contractor's quotation for Change Notices discussing differences with Contractor, as necessary, agreeing to differences and/or recommending further action (e.g.) to change, revise or carry out work of Change Notice; recording Change Orders keep records of post contract contingency allowance (P.C.C.A.); - arranging for and carrying out detailed inspections for substantial and total performance under the Construction Lien Act; - co-ordinating the District's responsibility for installation of telephones and furniture lay out; - collecting and arranging for as-built drawings, operating and maintenance manuals, warranties, guarantees and spare parts, ensuring same are deItvered to operating staff; - establishing Fire Safety Program for construction area; - ensuring that Contractor maintains Construction Safety at ail times; - 5 - - reviewing Shop Drawings; ' - reviewing of requests for substitution and making recommendations; - completing performance evaluation'of Contractors and/or Consultants; - preparing all project close out documentations; - recommending and documenting termination of contract. 3. Performs other related tasks as assigned such as: . conducting surveys 5% - providing feasibility studies - attending workshops and seminars - providing technical advice to Property Manager : Skills and Knowledge Extensive knowledge and. many years of experience in the construction industry particularly in field supervision, estimating Building Codes, related Labour Relations and legislation. Ability to co-ordinate and control a number of projects simultaneously, good communication skills, well developed analytical and admin}strative skills to deal tactfully with a variety of problems. Experience gained through qualification accepted in the Construction Industry and many years of on site experience or construction trade and supervisory experience. Ability to do drafting and provide technical supervision. Willingness to travel and possession of a yalid Ontario Class G Driver's license. In addition, the grievor's duties were further illustrated in an unofficial study (Exhibit 2) prepared subsequent to the filing of the grievance. However, as the grievor admitted, that document did contain some inaccuracies. The relevant class standards read: SERVICES OFFICER 1 This class covers positions of employees in the Ministry of Government Services who arrange, inspect, and supervise the installation and re~air of either electrical or mechanical systems and equipment tn Government-owned buildings in all districts except those in the Central Region where the Manager position is classified at the Buildings Manager 5 level. These employees estimate job costs, arrange for contractors, inspect and assess the work of contractors, and recommend acceptance or rejection of claims in excess of tender. They supervise and assign work to foremen or tn some districts directly - 6 - day to day labour forces. They may also be required to personally supervise the ongoing preventative maintenance program of the electrical or mechanical services within the area, including co-ordination between areas of trade specialization. In ali districts, these employees prepare annual budget estimates based on their assessment of requirements for new mechanical or electrical installations and replacements. In some dtstricts~ they may also be required to provide budget estimates for the total operation and maintenance program. SKILLS AND KNOWLEDGE: Skill in an appropriate electrical or mechanical trade; supervisory and instruet£onal ability; abillty to lay out work assignments from plans and specifications; ability to estimate costs of materials and labour; ability to prepare reports; a good knowledge of statutes, regulations, and by-laws governing electrical or .mechanical installations. SERVICES SUPERVISOR 2 Th~s class covers positions of employees who are responsible for ensuring the technical implementation and execution of projects concerned with the installation~ maintenance and improvement of either electrical or mechanical systems and equipment In Government-owned buildings in an assigned region of the Ministry of Government Services. These employees operate either as regional co-ordinators of minor oapftaI~ maintenanoe~ and improvement pro~ects In all but the largest region of the Minfstry~ or a regional inspectors of major capital projects. This class also covers the positions of the senior electrical or mechanical inspectors in districts in the Central Region where the Manager position is classified at the Buildings Manager 5 level. As regional co-ordinators~ they provide technical advice to district electrical or mechanical supervisors and staff. They personally prepare instructions, estimates and contract documents on the larger more complex pro~eots. When neoessary, they conduct inspections of large complex contracts and carry out investigations of the more difficult problems~ providing advice and guidance to district staff. They are responsible for the implementation~ operation, updating and co-ordination of the Preventive Maintenance Program covering electrical or mechanical equipment in Government buildings, arranging contract maintenance where required. They work closely with district electrical or mechanical supervisors in the preparation of annual budget estimates. As regional inspectors, they are responsible for ensuring that electrical or mechanical systems and equipment for ma~or capital projects are installed in accordance with designs and specifications. They inspect work in progress, reporting on any deficiencies, interference, site problems and other conditions. They instruct contractors on Government procedures and co-operate wlth them in resolving problems. They estimate labour and material costs to ensure the valldlty of progress billings and change orders. They conduct final inspection of completed work to ensure the proper functioning of the installation. SKILLS AND KNOWLEDGE: Skills in an appropriate electrical or mechanical trade; supervisory, instructional and administrative ability; ability to estimate costs and prepare work assignments from plans and specifications; thorough knowledge of statutes, regulations and by-laws governing electrical or mechanical installations. : Wayne Patterson testified that in 1983 there was a Ministry reorganization in 'which the London office changed its name from London Regional Office to London District Office. Bill Minion was the Employer's only witness. He is currently Director of the Minlstry's southwestern Region which includes the London District. Mr. Minion explained that under the present organizational structure established in 1983, the three districts in the southwestern region report to the Regional Office and that the actual program work is carried out by the District Offices. He also testified that between 1973 to 1983, there was greater head office control at which time all offices were called Regional Offices. Mr. Minion testified that '" the District Offices work on all Ministry programs except for major capital projects. He detailed the district involvement in each of the programs. The Union contended that the grievor was improperly classified as Services Officer 1 and merited reclassification to Services Supervisor ~ to reflect the administrative nature of the job, and the need for a thorough knowledge of statutes, regulations and by-laws. Mr. Roland contended that ro~ purposes of this hearing, contract inspectors should be deemed regional co-ordinators as they were when the class standard S.S. 2 was revised in 1981. The Board was referred to the following G.S.B. authorities. OPSEU (Peter Fenske) and Ministry of Government Services 494/85 (Verity); and OPSEU (Hartung/Wolf) and Ministry of Government Services 59/89 (Slone). The Employer argued that the current class standard properly captured the essential characteristics of the griever's job on an atypical basis by the use of the words "arrange, inspect and supervise". Mr. Francis submitted that there was no basis for a Berry type award. In support, the Employer cited Burski and Freedman and Ministry of Government Services 186/81 (Barton). Class standards are of necessity generally worded and must be taken as read and interpreted as a whoke. Although not meant to be a job description, the class standard must cover at least the significant elements of the job. The first question, then, is whether the griever is properly classified in his existing classification. On the evidence adduced~ we are unable to conclude that the grlevor as a contract inspector-general flts comfortably into the Services Officer 1 class standard. We say that for a number of reasons, lhe class standard was last revised on March ~, 1972 and is now somewhat dated. While it is true that absolute standards should be revised infrequently, they must surely be made subject to periodfc revision if they are to serve their intended purpose in any meaningful way. It wOuld appear that the Services Officer 1 class standard was designed to apply specifically to the electrical and mechanical trades as is suggested by the wording "the installation-and repair of either electrical or mechanical systems and equipment in Government-owned buildings in all districts". Although the grtevor, when acting as the prime co-ordinator of a project, has some minor responsibilities for both electrical and mechanical systems, it cannot be said that those duties constitute the core functions of his job. : SimilaPly, we don't agree that the phrase "arrange, inspect, and supervise" captures the essential characteristics of the job the grievor performs. While it is true that the grievor does "arrange, inspect and supervise", the~administrative nature of the position is not contemplated in the Services Officer 1 class standard. Clearly, a key element of the job is administrative in nature; namely, the general administration of a construction contract, the preparation of deficiency lists, the co-ordination of ensuring that permits have been obtained, the co-ordination of other inspections on the job slte, the recommendation for client occupancy upon completion of the work, and the administration of all warranties following substantial completion. It would appear that the Service Officer 1 class standard is a junior position and that administrative responsibility Is contemplated at the higher level of Services Supervisor 2. 'Similarly, the grievor ls required to have a thorough knowledge of statutes, regulations and by-laws as contemplated at the higher level. However, we cannot agree that the Services Supervisor 2 classification would be appropriate. This standard, like Services Officer 1, applies to either electrical or mechanical systems.and equipment. This is not the focus of the grievor's job. The S.S. 2 class standard primarily effects employees who operate elther as regional co-ordinators of minor capital, maintenance and improvement projects in all but the largest reglon of the Ministry, or as regional inspectors of major capital pro3eets. We cannot agree that regional co-ordinators should be interpreted to mean dlstrlct co-ordinators. In our opinion, the Board must read the standards as though drafted with the grievor's work in mind. Since the re-organization in 1953, contract inspectors have been district co-ordinators and not regional co-ordinators.. Given the finding that the grievor is currently misclassified as Services Officer I and the additional finding' that 5ervlces Supervisor 2 would be inappropriate, t~is is the appropriate case for a Berry type of award. Accordingly, the Employer is ordered to find or create a classification for the grievor's position, within a reasonable period of time, to properly'reflect his duties and responsibilities. The grievor shall be entitled to full retroactive benefits to 20 days prior to the filing of the grievance. The Board shall retain ]urlsdiction in the event of any difficulty in the implementation of this decision. DATED at Brantford, Ontario~ this 7th day ofDecember , A.D.~ 1990. R. L. VERITY, ~.C. - VICE-CHAIrPErSON - ........ ........ - D. MONTROSE - MEMBER