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HomeMy WebLinkAbout1988-1052.Simpson.90-08-09 CROWN £MPL OYEE$ DE L 'ONTA RIO GRIEVANCE C.OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, $[JITE 2~00, TO.~'ONTO, ONTARro. 180, RuE ~UNDA5 0uEST, BUREAU 2~, TORONTO (O~TA~O). 1052/88 IN THE MATTER OF AN ARBITItATION Under [ THE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEHENT BOARD BETWEEN: oPsEu (simpson) ~ Grievor - and - [ The Crown in Right of Ontario (Ministry of Natural Resources) Employer - and - BEFORE: R.J. Roberts vice-Chairperson J. McManus Member D. Daugharty Member FOR THE D. Wright GRIEVOR: Counsel Ryder, Whitaker, Wright and Chapman Barristers &.Solicitors FOR Tag P. Pasieka EHPLOYER: Counsel Winkler, Filion and Wakely Barristers & Solicitors HEA~ING: March 2, 1989 January 11, 1990 AWARD This is a classification case. Pursuant to changes in the Collective Agreement the Ministry was required to classify all of its seasonal employees. In this process, the grievor was formally classified as a Resource Technician 2. On September 26, 1988, he filed a grievance claiming that this was an improper classification and he should be classified as a Resource Technician 3, with retroactive compensation to April, 1984. For reasons which follow, the grievance is allowed in part. The grievor is hereby reclassified as a Resource Technician 3; however, retrQact~v-~y'L~ shall be limited to the usual period of time applied in such cases.,~ i.e., 20 days prior to the filing of the grievance. According to the evidence, the grievor was a Forest Technician in the Carlton Place District of the Ministry.. This was seasonal .employment, during which the grievor was employed for approximately 9 months per year. ~e commenced employment on this basis in 1983. The most recent position specification for the grievor described his duties as follows: 1. Supervision or audit of silvicultural operations such as mechanical and chemical site preparation, mechanical, chemical and hand tending, stand improvement, pruning and other silvicultural operations as required. (e.g. supervision of up to 14 seasonal staff (currently 7) giving direction to one permanent staff (R.T. I) while performing such duties as mechanical and chemical site preparation, £ mechanical and chemical cleaning, modifications and maintenance of equipmen~ and the floating of equipment to various work sites within the district) - assigning duties to subordinates ensuring targets are met and work is carried out according to prescriptions and cost limits - calibrations to all spraying equipment to ensure proper application of pesticides. -Ensuring that workers take precautions to protect health and safety of themselves and other by complying with such acts, codes, policies, procedures or accepted practices as may be appropriate, ensure that workers are advised of known hazards and the required precautions. N.B. Prescriptions, maps, etc. for the carrying out of this program are obtained from maps prepared in binders in the Forest Operations'Manager's office. 2. Lay out work areas by establishing and marking 10% boundaries and make necessary revisions where ground conditions dictate. 3. Assist Foresters and Senior Technicians in collection of data for forest management purposes by completing necessary forms recording such things as: cost of staff time, equipment time, type of 10% treatment, time of treatment, location and area treated. This information can. then be used by managers to monitor effectiveness of treatments and to provide information for budgeting purposes. 2% 4. Pest Control 24 5. Typing of aerial photographs, drafting, mapwork. 3~ 6. Assist Private Land Technicians as required. 5% 7. Tree Marking 204 1% 8. Regeneration and other surveys. .14 9. Inventory and operational cruising. 1~ 10. Assist scaler as required. 5% 11. Other duties as assigned Essentially on the basis of this position, specification the grievor's job was allocated to the classification of Resource Technician 2. Ms. S. MacIntyre, the Personnel and Compensation Manager for the Eastern Region of the Ministry, testified that in making this allocation, she relied on reading the job specification. She did not discuss the matter with the grievor. The grievor disagreed with several aspects of this position specification. He stated that his job was' considerably more complex, demanding and responsible than reflected in the specification. He pointed out three deficiencies in particular. Firs.t~ the grievor testified, the job. description did not reflect the fact that he supervised a regular employee of the Ministry, and not just seasonal employees. He identified this regular employee as Mr. R. Gibson, a Tractor Operator, Truck Driver and Float Operator. It seems that Mr. Gibson was a Resource Technical 1, employed by the Ministry on a full-time basis. The grievor also pointed out that further, while most of the employees under his supervision were classified as Resource Technician l's, he also supervised Mr. DesJardins, a Resource Technician 2 who was a Crew Foreman with five people under him. The fact that the grievor &ctually did supervise Messrs. Gibson and DesJardins was confirmed by the grievor's Supervisor, Mr. b. G. R. Billings, the Forest Operations Manager of the District. Mr. Billings confirmed on cross-examination that when he wrote up the grievor's position specification, he considered the grievor to be supervising Mr. DesJardins and his crew. He agreed 4 that the grievor was responsible for the quality and quantity of the work turned in by this ~rouD. Mr. Billings also confirmed that Mr. Gibson, a full-time employee, reported directly to the ~rievor. The only authority the grievor did not have with respect to these employees, Mr. Billings stated, was the authority to discipline them. Because this was a management function, he stated, that ,responsibility fell upon his own shoulders. In such a case, it would be up to the grievor to recommend discipline. Secqndly, the grievor stated, the position._spe¢ification did~ not a~e~uately re~lect the complexity of his decision-m.~king~with= respect to the application of pesticide's. The decisions he made in this area, the grievor stated, were major decisions of a complex nature. He. stated that pesticide application went on approximately 40% of the time worked by his crew, and he was responsible for it. He was constantly involved in making sure ~he chemicals were in the building, were signed out properly, calibrating the equipment, going out into the field to check the calibrations, etc. As to calibration, the grievor said that it was his job to calibrate the tanks on the tractors before they began to spray and also check on the sites where the work was being performed. In this regard, the grievor testified that he was responsible for ensuring that pesticide sprays were applied properly and in appropriate conditions. It was necessary to consider wind speeds and weather conditions. It was up to him, the grievor testified, to decide whether to shut a spraying operation down because of wind 'or rain and then find other work fo~ the crew to perform for the rest of the day. It also was. up to him, the grievor stated, to ensure the protection-of the health and safety of not only his crew but also the public and their property on lands adjacent to those being~ sprayed. The grievor said that if spraying is performed close to homes, the home owners will come up w~th questions about the chemicals being used and how it might affect them or their children. On one occasion, he stated, when a commercial 'beehive operation was located next to an area which was about to be sprayed, he made the decision to change the equipment used to spray the property and establish a 100 metre perimeter around the beehives which would not be sprayed. In another case, the grievor stated, he created a new technique for spraying in an area which was swept by strong winds. The grievor stated that when an outside contractor left the job without finishing it because of the winds, he and his colleagues devised a "shielded" boom which was capable of issuing a spray which was shielded from the wind. Thirdly/ the grievor testified, it was up to him either to make minor changes to so-called "prescriptions" or recommend major changes to the responsible Forester through Mr. Billings. k¢cord~ng to the evidence, a "prescription" was an outline of the 'work required to be performed on a particular piece of property. It would be issued by a Unit Forester or a Uni~ Technician. The prescription would indicate what areas should be prepared for planting each season, what areas should be planted, what areas should be sprayed'and the chemical composition of the spray to be applied. The grievor testified that each season he received a binder with about 200 prescriptions in it. It would be up to him, the grievor testified, to decide the order in which the prescriptions would be executed. Without clearing his decisions with anyone, the grievor testified, he would delegate to his crew various tasks to be performed on any given day on any particular piece of land. If field conditions were such that the prescription had to be changed, the grievor testified, e.g., by using a different spray or spraying .technique, the decision would be up to him. In.his~testimon¥, Mr. Billings substantiated the essence of- the g~ievor~'s~ evidence regarding the handling of prescriptions, although he d~ffere~ with the grievor on some details. He testified that it was a joint-decision between him and the'grievor as to the order in which prescriptions would be carried out. He also indicated that while it was up to the grievor to decide on some minor deviations from a prescription, e.g., spraying only one 7 pesticide where the prescription called for two when field conditions indicated that it was too early to spray the second. As to other changes to prescriptions, Mr. Billings stated, 'the grievor would question them but then it would be up to both him and the grievor to go back to the person who issued the prescription and discuss their views as to whether it ought to be changed. As to the spraying element of the grievor's job, Mr. Billings made it.very clear on cross-examination that the Calibration of the spray tanks, measurement of wing velocity and control of the materials being used involved the exercise of 'considerable precision on the part of the grievor.. It involved, it seems, more than the mere exercise of common sense. These and other observations of Mr. Billings were significant, in that they drew into question some of the bases upon which Ms. MacIntyre classified the grievor's position. For example, Ms. MacIntyre stated that she did not agree that the grievor supervised a full-time employee. Mr. Billings confirmed the grievor's evidence that he did so. Ms. MacIntyre also stated, that, from the job specification, she regarded the grievor as solely, responsible for the quantity of work put out by his crew. Mr. Billings confirmed that the grievor was responsible for both qUality and quantity. Finally, Ms. MacIntyre stated that she did not. consider the grievor's decisions with respect to the spraying of pesticides to be as complex or important as, e.g., title searching. She testified that they were common sense decisions made by a person who had a pesticide licence. Mr. Billings, on the other hand, testified that they were decisions which had to be made with precision. If"=the'~foregoifi~h~Facteristics of the g~['e~,'s jo,%had'been apparent.: at the timW of' classification',-"would -it~ have been classified.-at-the' level of Resource Technician 3? Wm~t~th'~?. it would.:-' The main differentiation between the Resource Technician 2 and Resource Technician 3 classifications was identified by the Board in Re Mulligan and Ministry of Natural Resources (1989), G.$.B. #1675/87 (Samuels), as follows: The hallmark of the RT3 is found in the first paragraph of the Standard. The RT3 is an employee "performing more complex, demandin~ and responsible technical duties". The second paragraph merely refers to some of the possible job duties o~ the RT3 - supervising and/or training regular employees or taking charge of groups of casual employees. But whatever the RT3 does, his work involves "more complex, demanding and responsible technical duties" The supervision, training and taking charge must take place within the general context of "more complex, demanding and responsible technical duties". ... Id. at p. 4. The essential test which must be satisfied is whether the employee seeking the classification of Resource Technician 3 performs "more 9 complex, demanding.,and responsible technical duties" than those assigned to th~ classification of Resource Technician 2. As to what constitutes "more complex, demanding and responsible technical duties, the class standards for these two classifications offer some helpful clues. The class standard for Resource Technician 2 only requires "some latitude for decision- "' making". The class standard for Resource Technician 3, however, requires "considerable latitude for decision-making". An employee with considerable latitude for decision-making will most definitely find his or her job "more complex, demanding and responsible" than one with just "some latitude". This is at the core' of the difference between the two classifications. In Mulligan, supra, the grievor failed to obtain reclassification because he could not show that his duties contained considerable latitude for decision making. The Board said: Mr. Mulligan did not do the technical duties which are the core of an RT 3's work. He was given the plan of action for the planting. The demanding technical problems had been worked out by the RT 3s and higher management.' He was simply responsible for the daily coordination of the'work being done by two work crews .... I__d. at p. 5. It was concluded that being responsible for the daily coordination of work without being involved in deciding the plan of action for planting or being involved in resolving demanding technical problems was insufficient to elevate Mr. Mulligan's job to the level of Resource Technician 3. In. the present case, however, the -latitude for~decision- making, of the grievor-was-much greater than that of Mr;-MulLigan - -so. great, in fact, as_to-brin~-the duties, of the grievor~within the range or, the ~mOre..complex, demanding and responsible technical duties" which constituted the "core" of the classification of Resource Technician 3. He supervised a full-time employee as_~ell~ as several seasonal employees -- one of whom was an RT2, was: responsible fgr both.the~ quality-.and .quantity of work put, out by them, and made complex, demanding~ and ~esDonsible~ decisions regarding the execution of prescriptions and the spraying of pesticides. These were major, not.incidental, components of his duties. The grievor was involved in making decisions with considerablel latitude every working day. In light of these considerations, we have no doubt that the grievor is improperly classified and should be reclassified as a Resource Technician 3. It was submitted on behalf of the grievor that if we decided to reclassify the grievor as we have, we should, in fairness and equity, award him retroactivity back to April, 1984, which was over four years prior to' the date of filing of his grievance. The reason for this, it was submitted, was that the grievor was induced by certain responses of management to put off filing his grievance. The grievor testified that in 1983, when the position was first 11 classified as a Resource Technician 2, he asked Mr. Billings whether this position should be a 3. Mr. Billings replied that it was just a training position. ~In 1984, the grievor asked another manager about it and he put the grievor off, saying he would have to see what the budget was like. In 1985, the grievor said, he again approached Mr. Billings and Mr. Billings responded that if the grievor wanted a 3, the job would probably have to be put out for bids and the grievor would have to compete with other applicants. After that, the grievor stated, he "let it go." In 1988, however, the grievor testified, he asked)tr. Billings once again about changing the job to a 3. Mr. Billings agreed to check with the. District Manager's office. When he responded a few weeks later that the position was to remain at the Resource Technician 2 level, the grievor said, he filed his grievance. Mr. Billings testified that he and the grievor had discussed the question whether the position was properly classified on several occasions, usually during the grievor's interview on his performance appraisal. He recalled telling the grievor before the filing of the grievance that he would check with his own supervisor about the jOb and get back to him, and when his supervisor indicated that the job was properly classified at the 2 level, he so advised the grievor. 12 Mr. Billings agreed that at one point in time he said that if the position was a 3, it would probably have to be posted and other Resource Technician 2's might be allowed to bid on it. He also confirmed the grievor's testimony that in 1983, the job was considered to be a training position. It is. well established in the jurisprudence of the Grievance Settlement Board that but for exceptional cases, retroactivity. limited to 20 days prior to the filing date of grievan6e'." We do not find that management"s responses to the grievor's repeated complaints about his classification were of a serious enough order to justify making an exception in this case. It was asserted that the grievor was intimidated, but considering the evidence as a whole, we cannot see that a case of intimidation was made out. Both the grievor and Mr. Billings testified that their relationship was a friendly one. The grievor presented.himself at all stages of the hearing as a strong and assertive individual. His employment relationship with the Ministry was of considerable duration, he was not in the position of an employee who could be easily intimidated, e.g., a junior employee with little exposure to his colleagues and work environment. Accordingly, the usual rule regarding retroactivity must be applied. The grievance is allowedin Dart. The position of the grievor is reclassified into the classification of Resource Technician 3, '3 retroactive to 20 days before the filing date of the grievance herein, September 26, 1988. DATED at London, Ontario, this 9th day of August 1990. R. J. Ro~ts, Vice-Chairperson J. McManus, Member