HomeMy WebLinkAbout1988-1047.Tilden.93-04-07~, ~., ~ /~'"'~ ONTARIO EMPLO¥~'S DE LA COURONNE
CROWN EMPLOYEES DE L 'ON TARIO
,~. GRIEVANCE C,OMMISSlON DE
,~ SETTLEMENT REGLEMENT
BOARD , DES GRIEFS
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1047/88
IN THE F.%TTER OF AN ARBITP~TION
Under
THE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN " '
OPSEU (Tilden).
Grievor
,. .... The Crown in Right of Ontario ..
(Ministry of Housing) ....
Employer
BEFORE M. Gorsky Vice-Chairperson
I. Thomson Member
M. O'Toole Member
FOR THE J. Miko
GRIEVOR Job Evaluation Officer
Ontario Public Service Employees Union
FOR THE S. Patterson
RESPONDENT Counsel
Legal Services Branch
Management Board of Cabinet
HEARING December'10, 1992
1
DECIgION
BACKGROUND
The Grievor, Ken Tilden, filed a grievance, on September 1,
1988 claiming that he was improperly classified as a Community
Planner 4 (Atypical) and requested that he be properly classified
as a Community Planner 5. Hearings with respect to this matter
took place on March 1, 1989, October 13, 1989, January 15 and 18,
1990, and March 5, 1990. The decision of the Board, dated June 20,
1990, allowed the grievance as follows:
The only way in which the improper classification of
the Grievor can be remedied is by making a Berry order
that the Employer create an appropriate classification
for him. In OPSEU (Union Grievance), 1642/85(b)
(Verity), the Board stated at p.22:
"The remedy for improper classification is proper
classification. In the Judicial Review of the
Grievance Settlement Board· Decision in OPSEU (Carol
Berry, et al) and Ministry of Community and Social
Services, 217/83, the Judgment of Mr. Justice Reid
released March 13, 1986 makes it clear that the
Board's obligation under s. 19(1) of the Cro~.n
Employees' Collective Bargaining Act is 'to decide
the matter' with a remedial mandate 'to effect a
proper classification'. The authority to classify
employees remains, of course, with the Employer.
The Board can go no further than to order the
Employer to find or create an appropriate
classification ....
In this case, it appears that no existing
appropriate classification can be found and it will be
necessary for the Ministry to create an appropriate
-' classification.
The Board shall retain jurisdiction on the proper
classification of the Grievor ... in the event that the
parties encounter any difficulty in the interpretation or
implementation of this Decision.
2
On January 29, 1991, Joanne Miko, Job Evaluation Officer for
the Union, sent a letter to Mr. A. Ryder, who acted as Union
counsel at the hearing, which letter ('Exhibit 1) is as follows:
RE: Tilden, GSB 1047/88
To date, we have not received a new class standard and
notice to bargain wages for this Berry-type decision.
Could you please make arrangements to have the Board
reconvened to set a time-frame for the Employer to
comply. The award was issued June 10, 1990, which should
be sufficient time to indicate some progress.
On February'5, 1991, Mr..Ryder sent a letter (Exhibit 2) to
the Registrar~ of the Board, as follows:
The~ Board"~ award_in this matte~, dated June 10, 1990,
directs the employer to ~stablish' 'a ~Q' elassificatioh
for the grievor. To date, it has not done so, no new
class standard or a notice to bargain with respect to the
wages for a new standard has been served and we have
received no explanation for the absence of any activity.
In the circumstances, we are asking that the Board
reconvene the matter so that steps can be taken to see
that the Board's order is honoured.
On April 5, 1991, Mr, Ryder again wrote to the Registrar
(Exhibit 3) as follows:
We have been advised by our client that the employer has
delivered a new classification as required under the
Board's order. In the circumstances, our request for a
further hearing in this matter is withdrawn.
On February 27, 1991, Brent Gibbs, Director, Employee
Relations Branch of the Human Resources Secretariat of the
Management Board of Cabinet, wrote a ietter (Exhibit 4) to Mr. A.
Todd, chief of collective bargaining for the Union, to which was
attached a class standard for: "Co-ordinator, Landscape
3
Architectural Services" with reference to "GSB ~1047/88, K. Tilden,
Grievor." The letter went on to state:
In accordance with Article 5.8 of the collective
agreement, we are prepared to meet to negotiate the
salary range for these classes. Please contact Kathy
Brown in this office with respect to meeting dates.
The class standard referred to in Exhibit 4, was marked as
Exhibit 5 to these proceedings, and is as follows:
Scientific and Professional Services S P - 1 0 A
Re sou'rc e s
...... ' ..... "'' ': --' Planning and'"' ......... :"
Management.
Co-ordinator, Landscape Architectural
Services . ..
CO-ORDINATOR, 'LAND~CAPE ~ARCHITECTURAL SERVICES : ..... "
This class covers positions which provide landscape
architectural design and site development consultative
services for social housing projects. These employees
operate either as head office specialists involved in
developing internal policies, standards and guidelines
and providing a consultative service to Ministry clients
and/or as regional co-ordinators delivering the landscape
architectural program for both existing and new
construction projects under the Ministry's non-profit
program.
As Co-ordinator, Landscape Architectural Services in head
office, the employees are responsible for preparing and
recommending ~nternal policies, procedures~ standards,
guidelines and manuals on the methods and materials for
site development construction and maintenance functions.
In addition, employees provide a professional
consultative services to Ministry clients~ by co-
ordinating landscape architectural projects including
recommending the retention of consultants, developing
requests for proposals , evaluating consultants
submissions, recommending hiring of consultants. They
also monitor the progress of their work and ensure
compliance with the objectives of the proposals. They
are responsible for research and development projects
related to site development, i.e. construction materials,
design or construction practices or contract
administration procedures and prepare appropriate reports
for review. They devel_op and conduct training seminars
4
on landscape architecture issues for Ministry clients.
They chair the Landscape Services Committee.
These employees will also perform the following duties
relating to the provision of consultative services to
local housing authorities and non-profit groups for
specific regions. As required, they participate in the
budget review and long term planning processes for these
agencies. As required, they contribute to the plans
review process for new construction projects by
participating in site evaluation, reviewing design
drawings and specifications at various pre-construction
stages for compliance to program, municipal and other
government agency requirements and tenant needs;
participate in the retention of consultants; advise
.housing agencies and groups on cost effectiveness and
suitability of design and conduct inspections as required
throughout the construction process.
As Regional Co-ordinator ~of Landscape Architectural
Services, the.emp~oyeg~ are. rgsp0ns~ble for. ~imple~enting
internal policies, proceduFes, s~andards, guidelines and
manuals for site development construction and maintenance
functions. Employees also provide a professional
consultative service to local housing authorities by co-
ordinating landscape architectural projects including.
recommending the retention of consultants, developing
requests for proposals, evaluating consultants
submissions and recommending hiring of consultants. They
monitor the progress of their work and ensure compliance
with the objectives of the proposals. They are also
responsible for tender review, supervision of
construction and final acceptance of the project. They
participate in the budget review and long term planning
process for these agencies.
These employees will also perform the following duties
relating to the provision of consultative services to
non-profit groups for regional projects. They
participate in the budget and long term planning
processes for these agencies. They contribute to the
plans review process for new construction projects by
participating in site evaluation, reviewing design
drawings and speCifications at various pre-construction
stages for compliance to program,~municipal and other
government agency requirements and tenant needs;
participate in the retention of consultants; advise
housing agencies and groups on cost effectiveness and
suitability of design ~nd conduct inspections throughout
the construction process. These employees are members of
the Ministry's Landscape Services Committee and conduct
5
training seminars for Regional local housing authorities
and, as required, for other Ministry clients.
SKILLS & KNOWLEDGe:
- Thorough knowledge and related experience in the
field ~of landscape architecture and designi
including construction practices, contract
administration and materials· This. would normally
be acquired through formal training in landscape
architecture from a recognized educational
institution or the equivalent combination of
education, training and experience.
- Ability to conduct feasibility s~udies,
prepare/review plans and specifications related to
landscape architectural project.
- Ability to develop internal policies, procedures,
guidelines as.related to landscape architecture.
- ~ilYty~'~0'de~lo~ ~'"'~&'~iver tr~ining'p~ograms.
- Well developed administration, negotiation,
interpersonal and communication skills.
The parties held meetings to discuss the class standard on
November 29, 1991 and February 13, 1992. The Union regarded
certain areas in the proposed class standard, as set out in Exhibit
5, as being deficient in that they did, from its perspective,
inadequately reflect the duties and responsibilities of the
Grievor.
On February 18, 1992, Ms. Miko wrote a letter to the Registrar
of the Board (Exhibit 6), which is as follows:
It is the union's position that the employer has not
created a proper classification in response to the
Board's award. We therefore, request that the Gorsky
pane] be reconvened to deal with this matter.
6
We would appreciate your assistance in arranging an
arbitration hearing as soon as possible.
The class standard which the Union proposed with respect to
the Grievor (Exhibit 7) is as follows:
Scientific and Professional Services S P - 1 0 A
_Resources
Planning and
Management
Co-ordinator, Landscape Architectural
Services
CO-ORDINATOR, LANDSCAPE ARCHITECTURAL SERVICES
This class covers positions ,of employees who provide
landscape architectural design and ~site development
consultative services for social housing projects
.' -throughout.the Province. These employee~ are the head
office .specialists involved in developing .internal
pol~ci'es, standards and guidelines and' Provide a
consultative service to Ministry staff and client groups.
They co-ordinate the delivery of the landscape
architectural 'program for both existing and new
construction projects funded by the Ministry and ensure
the proper implementation of policies, procedures and
standards in the field of landscape architectural and
site development for the Ministry.
As Co-ordinator, Landscape Architectural Services in head
office, the employees are responsible for preparing and
developing internal policies, procedures, standards,
guidelines and manuals on the methods and materials for
site development design, construction and maintenance
functions. In addition, employees provide a professional
consultative service to Ministry clients by co-ordinating
landscape architectural projects including recommending
the retention of consultants, developing requests for
proposals, evaluating consultants submissions,
recommending hiring of consultants. They also monitor
the progress of their work and.ensure compliance with the
objectives of the proposals. They are responsible for
research and development projects related to site
development, i.e. construction materials, design or
construction practices or contract administration
procedures and prepare appropriate reports for use in the
field. They develop and conduct training seminars on
landscape architecture issues for Ministry clients,
staff, interested public and consultants. They chair
special committees on site development design,
construction and maintenance for Ministry staff,
7
These employees will also perform the following duties
relating to the provision of consultative service~ to
local housing authorities and non-profit groups for
specific regional offices. A~ required, they participate
in the budget review and long term planning processes for
these agencies. As required, they contribute to the
plans review process for new construction projects by
participating in site evaluation, reviewing design
drawings and specifications at various r~re-construction
stages for compliance to program, municipal and other
government agency requirements and tenant needs;
participate in the retention of consultants; advise
housing agencies and groups on cost effectiveness and
suitability of design and conduct inspections as required
throughout the construction process.
SK~LLS & ~NOWLEDGE:
- Th0rough knowledge and related experience 'in the.
....... field of landscape architecture~ and. design,
including construction practices, contract
administration and materials. This would normally
be acquired through a degree in landscape
architecture from a recognized educational
institution or the equivalent combination of
education, training and experience. Membership in
the Ontario Association of Landscape Architects.
- Ability to conduct feasibility studies,
prepare/review plans and specifications related to
landscape architectural project.
- Ability to develop internal policies, procedures,
guidelines as related to landscape architecture.
- Ability to develop and deliver training programs.
- Well developed administration, negotiation,
interpersonal and communication skills.
- Good interpersonal skills to mediate disputes and
conflicts between owners and contractors and to
assign and direct the 'work of consultants.
One of the positions taken on behalf of the Employer was that
management retained the exclusive right to determine the content of
a class standard and that if the Union was dissatisfied with the
8
class standard prepared in compliance with the Board's D~Lr2~ order,
then it could only obtain redress by once again filing a grievance..
Thus, the Ministry took objection to the Board taking upon itself
the determination of the content of the class standard.
DISCUSSION OF THE EMPLOYER'S OBJECTION TO ARBITRABILIT¥
In support of its position that the remedial
jurisdiction of the Board, in the case 'of a class standard
established by management pursuant to a Berry-type direction to
create a proper classification, did not include .the power to review
the content of the standard, decide whether it was properly
drafted, and if it was found that it had not been, to order the
Employer to re-draft it as directed, counsel for the Employer
relied upon the decision of the Board in Anderson et al., 497/85
(Roberts). In that case, in the spring of 1985, the Board dealt
with classification grievances filed by 200 conservation officers
on the grounds that~they were improperly classified as Resource
Technicians 3, having regard to the actual duties then assigned to
them by the Ministry of Natural Resources. By agreement, the
parties went f~orward with the case of one grievor, and agreed to
take that evidence as representative of eight grievors in the
Kenora District while ho]ding the remaining grievances in abeyance
and applying to them, as far as possible, the conclusions reached
in ~hat arbit~'ation.
9
on August 26, 1986, the Board issued its first award in which
it accepted the evidence that the grievor's work had changed from
technical and management duties, of the sort described in the class
standard for Resource Technician 3, to almost entirely enforcement-
related duties which were mentioned only incidentally in the class
standard. The Board made a Berr~ order, remitting the matter to
the Ministry for the purposes of establishing a proper
classification for the grievors.
The Ministry, in early 1987, reclassified the grievors to
only a change in title and the grievors, as in the case before us,
asked the Board to reconvene on the ground that its order had not
been properly implemented by the Ministry. A second Board hearing
was held on February 6, 1987, when the Ministry argued that the
Board's jurisdiction was spent and the grievors' only remedy was to
start the process all over again by filing new grievances. On
February 10, 1987, the Board, in its second decision, held that it
had the jurisdiction to consider whether the Ministry had properly
implemented the first award of August 25, 1986.
On October 15, 1987, the Board held a third hearing and issued
its decision on that day finding that the Ministry had not
satisfied the requirements of its original award and again remitted
the matter to the parties for the purpose of establishing "on an
urgent basis" a proper classification for the grievors. In ali of
10
its decisions the Board retained jurisdiction pending
implementation of its award.
In November of 1987, the Ministry received government approval
to create a new class standard which created a higher
classification called Resource Technician 4. As is the case in the
the matter before us, Union was not satisfied with the content of
the classification and no agreement was reached with management.
The case once again came on before the Board on May 9, 1989
for a. fourth hearing relating to the classification grievance fil~
about four years previously. At the fourth hearing, the employer
took the same preliminary objection to the Board's jurisdiction as
was taken in the case before us, saying that the Board had no
jurisdiction to review the content of the class standard proposed
by the Ministry in response to the Board's Berry~type award, and
that the Board had no jurisdiction to direct the correction of the
standard to reflect properly the duties and responsibilities of the
grievors.
The Board, on June 14, 1989, gave effect to ~he Ministry's
preliminary objection and declined jurisdiction to decide whether
the content of the class standard was properly drafted either in
form or in substance. Counsel,for the Employer relied on certain
of the reasons given by the Board in Anderson.
11
In the Anderson case, the Board held that the exclusive
management right under s.18(1) of the Crown Employees Collectiv~
Bargaining Act to determine the classification of positions
prevented it from interfering with the classification system or the
application of it to positions in the Public Service. The Board
rejected the union's position that the jurisdiction of the Board
under Berry was to effect a proper classificati6n, which
necessarily includes the identificati6n and correction of
shortcomings in the existing class standard:
In our opinion, however, the Divisional Court in Berry
did not intend to overturn the entire body~ of
........ ...jurisprudence_of this Board regarding ithe limitation,
which Section 19 (1) of the Crown Employee's Collective
Bargaining Act places upon our jurisdiction. This
limitation was not at issue in Berry. The court did not
have an opportunity to consider it. And given the
extensive nature of the applicable jurisprudence and its
consistent application, we would not be induced to depart
from it without a clear and unmistakable direction from
the court to do so. This we do not have.
It was common ground that the Board intended to refer s.18(1), not
s.19(1).
The Board held that the act of classifying a position was a
narrow function of applying to the position an existing
classification system which did not include a direction with
respect to the drafting of the components of that system. It was
this holding of the Board that counsel for the Employer asked us to
follow.
12
The Board, in Anderson, regarded itself as being governed by
a number of decisions of the Board which are set out at p.5 of that
case. The limitation on its jurisdiction, said to be found in the
cases referred to, is set out in re Rounding and Ministry of
Community and Social Services (1976) 18/75 (Beatty.), as follows:
In the first place it is readily apparent that the
methods and principles by which positions are to be
classified is, as a result of the most recent set of
amendments to The Crown Employegs Collective Bargaining
Act, a bargainable issue between the various employee
representatives and the employer. However, by virtue of
s. 17(1)(a) [now s. 18(i)(a)] of~that~ same Act~' it is
manifest that having settled on a particular
classification and job evaluation system,- the actual
.... classification of positions is within the exclusive
prerogative ,,o.f..th~.emplpycr~ ~ ~n the result 'and for
purposes of'ehtert~iHing grievances Unde~+"s~ 17(2)'(a) of
the Act [now s.18(2)(a)], in which an employee alleges
that he or she has been improperly classified, it
necessarily follows that this Board must take as a given
and Cannot interfere either with the classification
system agreed to and adopted 'by the parties or the
application of that system to the various positions
within the public service, Rather this Board's sold
function in the resolution of .grievances alleging an
improper classification, is to determine whet.her the
employer is conforming to the classification system as it
has been established and/or agreed to. .~. Id. at pp. 3-
4.
Counsel for the Employer submitted that we ought to follow the
reasoning of the Board in Anderson notwithstanding the fact that,
the application for judicial review of the union to the Divisional
Court resulted in the award being quashed and the matter remitted
to the same panel of the Board for rehearing: Ontario Publiq
~m~loyees Union and David Anderson et al. and the Crown in Right of
Ontario as represented by the Ministry Of Natural Resources and the
Crown Employees' Grievance Settlement Boar~, unreported decision of
13
the Divisional Court dated September 21, 1990, which case was
subsequently appealed by the employer to the Court of Appeal, where
it has not yet been heard.
In its reasons, the Divisional Court, per Campbell J., stated,
at pp.l-2:
The case turns on the application of the principle
in Ontario Public Service Employees' Union and Berry v.
Ontario Ministry of Community and Social Services (1985),
15 O.A.C. 15 at p. 20 (Div. Ct.) that the Crown Employees
Grievance Settlement Board in a classification grievance,
once it decides that a classification.~is wrong, has an
unrestricted remedial jurisdiction to effect a proper
· , . classification. ·
.,~ ............ Do~S.~h~,~n~{~t~d· ~emediai"j~risd~ti~',~'i~~ ~h6
case of a class standard established by management
pursuant to a Berry-type direction from the Board to
create a proper classification, include the powe~ to
review the content of the class standard and decide
whether it was properly drafted?
The Divisional Court, at p.10, noted the finding of the Board:
"... that the act of classifying a position was a narrow function
of applying to the position an existing classification system which
did not include the drafting of the components of the system, that
the Board had no jurisdiction to decide whether, the classification
or class standsrd applied to the position was improperly drawn and
that it could not become involved in reviewing and drafting of ~he
components of the classification system."
The Divisional Court, at p. 14, identified three principles
that govern the extent of the Board's jurisdiction:
1. The,right of the employee to grieve classification.
14
2. The duty of the Board to bring about the final and
binding settlement of all differences between the
parties, and to bring it about fairly, effectively
and efficiently within a reasonable time.
3. The right of management to classify positions and
the corresponding restriction of the Board's
jurisdiction.
In applying the governing principles, the Divisional Court
stated, at pp.15-17:
It is obviously the Board's view that it would make
good labour relations sense to be able if necessary, in
the somewhat unusual Berry type case, to review and
direct in some manner the development of one component of
the classification - in this case the class standard for
hii 4
·Resource Tec n c an. ,
~h~ d~ar~ mig~t 'ch6ose not {o'e~e~d£d'e'that 'ultimate
remedial power in this case or any other case. The Board
might prefer to keep it in reserve as a lurking ultimate
power, the mere existence of which might encourage..
management to get the Berry-directed reclassification
right the first or second time instead of being able in
extreme cases to come back forever with inappropriate
classifications.
To deny the board that ultimate po~er is to deny it
a tool, necessarily incidental to the Berry power, that
the Board obviously considers useful to effect the final
resolution of disputes.
The power to implement a proper classification must
necessarily include the power to review the conten~s of
that classification for sufficiency and to instruct
management to alter or amend the class standard to
reflect properly the duties, responsibilities, etc. of
the grievors.
The power to require management to create a proper
classification necessarily includes the power to require
management to get it right.
To hold otherwise would restrict the unrestricted
remedial jurisdiction, referred to in Berry, to effect a
proper classification.
To hold otherwise would defeat the legislative
object of efficient and final settlement of grievances.
it would promote the very mischief described by the
Board; multiplicity of proceedings, exhausting and
protracted delay, frustration, needless inefficiency.
The decison of the Divisional Court further states, at p.18:
It made no labour relations sense 'to the Board to
decline i'ts jurisdiction and attract the mischief__qf lack
of finality and bad labour relations practice. The Board
described the impugned jurisdiction as a logical and
efficient step toward a final and binding resolution of
the dispute. The Board declined jurisdiction not on the
grounds that it made any labour relations sense to
decline, but because the statutory restrictions prevented
it from taking steps it considered logical, reasonable,
and efficient to carry out its mandate.
Finally, the Divisional Court considered whether the third
.principle, involving management's right to classify positions under
s.18(1) (a), and the corresponding restriction of the Board's
jurisdiction "required the defeat of the employee's right to grieve
classification and the Board's duty to effect final settlement of
all grievances?"
The Divisional Court, at p. 19, did not find that Berr~
suggested: "That. the right to grieve classification and the duty to
settle all grievances finally and efficiently must yield to
management's classification rights or the corresponding restriction
on the Board's jurisdiction."
Further, at pp.19-20, the Divisional Court observed that while
the power "contended for by the employee" involved the Board in
16
some classification activity, this was "no more than is necessarily
incidental to the employee's right to grieve classification and the
Board's power Board [sic] to effect the final settlement' of
classification g~ievances. This necessarily incidental activity on
the fringe of the classification system reserved..to the employer
under s.18(1)(a) does not represent any incursion .into the
statutorily protected zone of management classificatio~ rights."
This, the Divisional Court considered to represent (at p.20): "the
narrow ambit of necessarily incidental Board activity around the
outer edge of management's protected classification zone."
It is evident that the Divisional Court regarded such
incursions by the Board as being (at p.21): "entirely a matter for
the Board." That is, it is up to the Board to decide when it is
appropriate to exercise: "its remedial jurisdiction to review the
content of the class standard and instruct management to alter or
amend it." It is up to the Board to decide whether to: "take the
view that Such cases would be rare and that the power should only
be exercised in extreme cases.~''
In th~ circumstances, where we are dealing with a matter of
jurisdiction, it would be inappropriate for this panel of the Board
to disregard the decision of the Divisional Court, which is binding
on us.
FIRST ALTERNATIVE POSITRON OF THE EMPLOYER
17
Counsel for the Employer argued that even if the Board had the
power recognized by the Divisional Court in Anderson, it would
first be necessary for this panel to review the standard created by
the Ministry in the light of the duties and responsibilities of the
Grievor (Exhibit 5) and decide whether his core duties and
responsibilities have been reasonably captured by that standard.
If we decided that the standard created by the Ministry has
reasonably captured the Grievor's core duties and responsibilities,
that would end the matter. Only if we decided against the position
of the Employer would we have to consider the extent of our
re edial jurisdiction.. It was submitted tha we ug~ e t
this case as if it had not arisen following the issuance of Berry
order. We were asked to apply the best fit test to this
classification without any consideration of how the class standard
came to be drafted. That is, as if this were an ordinary best fit
case.
It was the~ position of the Employer that there was a
reasonably good fit between the core duties and responsibilities of
the Grievor and those set out in the class standard prepared by the
it (Exhibit 5) pursuant to the order in our original decision.
Counsel for the Union submitted that the Employer had failed
to incorporate into Exhibit 5 those matters which the Board had
emphasized in its decision. Reference was mad~ to the second last
paragraph at page 3 of the award which stated:
18
At the time of the grievance, field work occupied between
50 and 60 percent of the Grievor's time with the balance
of his duties being devoted to the co-ordinating
function. At the time of the grievance, it was
anticipated that field work would occupy 20 percent and
co-ordinating functions, 80 percent of the Grievor's
duties.
Reference was also made to the statement found at pp.5-6 of
the award:
Mr. Gibson [the Grievor's supervisor and a member of
management ] described the T Grievor' s primary
responsibility as being in the area of co-ordinating the
development and implementation of policies, procedures
and standards in the field of landscape and site
deve 1 opment .......
Reference was also made to the statement in the award, at p.6:
The Grievor's role to support RHPO's continued, but the
primary focus of his position was to establish technical
standards to be employed by the Ministry in its programs.
This resulted in the publication of guidelines to be used
by such consultants as architects, engineers, and
landscape architects working for non-profit housing
entities. The decision to assign the Grievor to the
· ordinating function was as a result of Mr. Ois'
resignation during the course of the re-organization.
Mr. Ois had been the Chief Landscape Architect (a management
position) prior to his retirement.
Counsel for the Union also argued that Exhibit 5 failed to
incorporate certain findings in the award relating to the province-
wide s~ope of the Grievor's position which was said to be
interrelated with the co-ordinating function, but not necessarily
19.
co-extensive with it. Reference was also made to the evidence of
Mr. Gibson, at pp.9-10 of the earlier award:
Mr. Gibson testified that the Grievor prepares procedures
and standa..rds for use throughout the province. He stated
that the Grievor must take the differing climactic
conditions throughout the province into consideration.
He also referred to the range of physical and geologica4
differences throughout the province which can affect
foundations, retaining walls, paving, curbing, degrees of
grading and selection of soft landscaping materials
(grass, shrubs, trees).
Mr. Gibson stated that in order to perform the
coordinating function, the Grievor has'to know about
other 'relevant conditions existing throughout the.
province.
~.. . Counsel f0~ th~ Union also referred to a let{'~r' f~om" Mr.'
Gibson to Mr.'P.G. Stonehouse Director, Technical Support Branch on
May 26, 1987, where he stated:
In considering this matter it is our opinion that the new
.position should be reclassified at a higher level
because:
1. The position is directing and managing all
landscape operations in 4 of the 6 Regional Housing
Program Office areas.
2. The two other RHPO areas are serviced by Landscape
Architects classified at the same level as this
position, although the amount of work is only 25%
as heavy and with less travel.
3. In addition the position is responsible for
establishing and publishing landscape standards,
specifications, developing training material and
executing Applied R & D duties. This position is-
the Chairman of the Landscape Advisory Committee on
Design, Operations and Maintenance but is not'~paid
accordingly.
20
Counsel for the Union also referred to'the evidence of Karen
Pashleigh who testified on behalf of the Employer at the earlier
hearing and who classified the Grievor in his current position:
She stated that she was also moved by the fact that there
were two persons, one each in the south and central
regions, who were doing landscape architectural work and
were classified as Community Planner 4's. She concluded
that the other persons performing landscape'architectural
work. differed from the Grievor in that they had no
significant co-ordinating duties. She stated that she
considered the Grievor's co-ordinating duties and
regarded them as being equivalent to the field duties in
terms of the skills and knowledge required.
(Decision, at p.15)
...... Pashleigh~,~
.. . .... .Reference was also made to. the evidence of Ms. ~e~ ':''
out at p.16 of the earlier award:
In cross-examination, she acknowledged that while there
are two employees, Messrs. Foley and McElroy, who hold
the position of Regional Landscape Architect (Community
Planner 4 (Atypical.)) in the southern and central
regions, respectively, the person to whom they report
(the Technical Manager RHOP in their office) periodically
relies on the Grievor to deal with technical landscape
architectural problems that cannot be dealt with by them.
Counsel for the Union also referred to the finding of the
Board (at p.16 of the earlier award):
I am satisfied that his training, qualifications and
experience in the field of landscape architecture is
greater than that of either Messrs. Foley an~ McElroy,
and that he serves as a trouble shooter for their
Supervisors when the Grievor's greater skills, background
and training are needed to solve difficult problems.
It was the position of counsel for the Union that the Employer
had, in Exhibit 5, failed to reflect the finding of the Board that
21
the duties and responsibilities of. the Grievor were different from
the other employees with whom he was compared, and that he had to
manifest significant co-ordinating functions throughout the entire
province and had significant troubleshooting responsibilities.
In reviewing Exhibit 5 and Exhibit 7, counsel for the Union
made the following submissions:
1. That the Employer had failed, in the first sentence of Exhibit
5, to state the Significant fact that the positions involved
~'i,~ ..... ~-. the carrying.out of duties and responsibilities "th~ho'u~
the province."
2. That the second sentence of Exhibit 5 improperly combines into
the standard the Regional Landscape Architect position and
that of the Grievor. In doing this, the Employer was said to
have included the Grievor at the same level as the Regional
Landscape Architects from whom he had been differentiated in
the earlier award.
3. In order to properly follow the directive= of the earlier
decision, counsel for the Union submitted that the second
sentence of the first paragraph of Exhibit 5 should be changed
to demonstrate that there is but a single position where the
employees so classified "are the head office specialists,"
~dding that the service is provided not only ~for "Ministry
22
clients" but also for "Ministry staff". In t. he third sentence
of the first paragraph of Exhibit 7, the Union has added words
said to be consistent with the findings of the Board in the
earlier decision recognizing the role of the Grievor's
position in ensuring "the proper implementation of policies,
procedures and standards in the field of landscape
architectural and site development for the Ministry".
4. That paragraph 2 of Exhibit 5 be amended by removing the word
"recommending" and substituting the word "developing," so that
-~. ~ the .position would ~be.~ "responsi~l~ .for..preparing and.
developing internal policies" etc. The Union also objected to
the failure to include "design" after the word "site
development" found in line 4 of para. 2 of Exhibit 5.
5. That the third last line of Exhibit 5 be amended so that the
words "for review," be.substituted by the words "for use in
the field."
6. The Union al'so requested that there be added to the se6ond
last sentence in paragraph 2 of Exhibit 5 the words "staff,
interested public and consultants."
7. That the second paragraph of Exhibit 5 be deleted after the
words "they chair," and the following words added: "special
committees on site development design, construction and
23
maintenance for Ministry staff." It was also the po'sition of
the Union that the committee referred to in Exhibit 5 was
incorrectly named.
8. Counsel for the Union also submitted that the'-third paragraph
of Exhibit 5 failed to adequately, state the province-wide
scope of the position in that the first sentence of that
paragraph referred to "specific regions" instead of "specific
-~. regiona~ offices" which latter description captured, as' the
first one did not, the province-wide nature of the duties
-., .. r ..... performed.. - .... , ~ - ,~ .. -- .... ·
9. The reference to the position of "Regional Co-ordinator of
Landscape Architectural Services", on .page 2 of Exhibit 5,
amounted to an unwarranted inclusion of a position other than
that of the Grievor's, which was the only position subject to
the Berry order. This objection applied to the first two
· paragraphs of page 2 of Exhibit 5 which are not found in the
Union's submission (Exhibit 7).
10. That "membership in .the Ontario Association of Landscape
Architects ought to have been added to the "skills and
knowledge component" of the class standard, and that the last
sentence of Exhibit 5 should be changed to: "Good
interpersonal skills to mediate disputes and conflicts between
owners and contractors and to assign and direct the work of
24
consultants." It was submitted that these changes were
necessary in order to clearly establish the level of the work
that would be compensated.
Relying on the above submissions, counsel for_the Union asked
the Board to order the Employer to adopt the language in Exhibit 7.
Counsel for the Employer submitted:
1. That this Board had no jurisdiction to interfere with the
inclusion'~f two positio'ns in a'~single°s~nd~rd, as to d0 s~
would undermine the very essence of the Employer's
jurisdiction under the system of classification. In the view
of counsel for the Employer, there were only two issues raised
before us that could be reasonably regarded as core issues, or
questions relating to the core duties of the position. I n
Exhibit 7, the Union added the words "throughout the Province"
to capture this aspect of the position. Counsel for the
Employer suggested that it was inherent in Exhibit 5 that the
Employer had recognized the findings in the Board's earlier
award as to where and how the Grievor performed his work.
Reference was made to the repeated references to the Grievor
providing services to Ministry clients and his duties and
responsibilities relating to consultants. Because the award
indicated that clients could be found throughout the province
as well as at head office, this was said to indicate with
25
Sufficient clarity the Province-wide responsibilities of a
person so classified.
2. The second core function referred to was the co-ordina~ing
function. This was said by counsel for the-. Employer to be
explicitly recognized in the job title and throughout the
remainder of the class standard as set out in Exhibit 5.
Reference was made to the language employed in the class
-standard .which was descriptive of co-ordinating functions or
functions which were subsets of co-ordinating activity.
Specific-reference was made to the. seventh line .of ~Exhib..i.~,~.. 5,
being with respect to "co-ordinating landscape architectural
projects including reconm~ending the retention of consultants"
etc. Also referred to was a sentence in the second paragraph
of Exhibit 5: "They also monitor the progress of their work
and ensure compliance with the objectives of the proposals."
3. Reference was also made to the requirement found in the third
sentence of the second paragraph in Exhibit 5 involving the
monitoring of the progress of an incumbent's work and ensuring
compliance with the objectives of proposals as representing an
aspect of the co-ordinating function. The co-ordinating
function was also said to be found in the second and third
lines of the third paragraph of Exhibit 5: "provision of
consultative services to local housing authorities and non-
profit groups for specific regions." Relying on the above
26
language-, it was submitted that the co-ordinating functions
identified in the first award were captured in the language of
the standard prepared by the Employer (Exhibit 5).
4. In addition, counsel for the Employer submitted that a' number
of the changes introduced into .Exhibit 7 by the Union were not
based on any finding in the first award. In particular
reference was made to the following:
a. It was submitted that the Board, in its award, had not
found facts that supported.a conclusion that the'Grie~or
developed internal policies etc., in the sense that his
was the last word. It was submitted that the evidence
found that the Grievor played an important role in the
development of internal policies, but that the final
decision was made at a higher level of. authority.
b. It was also submitted that the Grievor's duties and
responsibilities with respect to the development and
conducting of training seminars on landscape architecture
~ssues we,re for Ministry clients and did not include
"staff, interested public and consultants." There was
said to be no evidence with respect to whom the training
seminars were developed or conducted for.
27
c. It was submitted that there was evidence in the award
that the Grievor chaired only one committee: "Landscape
Advisory Committee on Design, Operations and Maintenance"
and that he had never chaired any other committee, and
accordingly, the language in Exhibit..~7: "They· chair
special committees on site~ development design,
construction, and maintenance for Ministry staff" was
inappropriate.
d. It was submitted that the inclusion of a requirement for
membership.~ in the~ .Ontario .Association of' ~a'nd'~'~ap'~
Architects was inappropriate. And that there was no
finding in the first award that this was a requirement of
the position, nor was such a requirement consistent with
the provisions in the Manual of Administration relating
to the subject of credentialism. In the guidelines
concerning credentialism the following statement appears:
Requiring formal job credentials may create systemic
barriers for certain individuals or groups. Asking for
credentials will discourage some people from applying for
a position that, given their previous experience and. on-
the-~job training, they might be otherwise qualified for.
Having a credential does not necessarily guarantee better
performance or greater aptitude.
In addition, the guidelines state:
Approved Use of Credentials
A credentia.1 must only be used as a selection criteria
when the accreditation is required by statute or
regulation.
28
For some positions, however, the only method of obtaining
the skills, knowledge and ability needed for effective
job performance may be through a credential which is not
required by statute or regulation. An example is
training in occupational therapy acquired by completing
an Occupational Therapy certificate.
Before concluding that a particular credential is the
sole means by which a candidate will acquire the needed
job skills, the following questions should be answered:
What skills and knowledge necessary for the job' are
acquired by obtaining the credenfial?
· Are there job duties that candidates lacking the
credential could not perform?
· Is it the whole credential which imparts the needed
job skills or only some part of it, for example
selected courses? (If so, ask only .for those.
courses.) Can the skills learned through the
courses be obtained by other means?
· Are you confident that a particular credential
provides the only means of ensuring effective~
performance?
Use of Equivalencies
Where it 'is possible to identify means other than
credentials for acquiring the skills, knowledge and
ability to perform the job, only these requirements
should be advertised. Managers should exclude the
requirement for a specific credential and replace it - in
both the position specification and the job advertisement
- with statements describing the knowledge, skills, or
experience required to do the job. Similarly, indirect
references to credentials should not be used, for
example, "knowledge of behavioral analysis normally
acquired through a degree in psychology".
It was submitted that the words in Exhibit 5:
normally be acquired through formal training in landscape
architecture from a recognized educational institution or
the equivalent combination Df education, training and
experience" represents a realistic requirement, and that,
29
apart from the po]icy on credentialism sufficiently
captures the requirements of the position.
5. The other objections raised by the Union were said to be
outside of the range of core issues and at best "window-
dressing." Accordingly, the Board was asked not to deal with
them, as to d6 so would invite "unnecessary and needless
litigation."
6. Relying on his earlier argument that we ought to look at this
case as if Exhibit 5 were the class standard to which the
Grievor had been appointed at the time we initially heard this
case, we were invited to find that the Grievor's duties and
responsibilities represented a good enough fit with Exhibit 5
and that, accordingly, it ought not to be disturbed. In doing
so, it was submitted that we ought not to be affected with any
minor variation in areas that were not really in the nature of
core duties. ·
In response to the Employer's position on credentialism,
counsel for the Union argued that~ the Grievor was a graduate
.landscape architect and a member of the Ontario Association of
Landscape Architects. It was submitted that the only way that the
Grievor could be called a landscape architect was if he was a
member of the Association. In addition, ~t was submitted that the
30
Grievor was presented to the public in the Employer's directory as
a professional landscape architect.
Counsel for the Employer referred to soll(1) of the Ontario
Association of Landscape Architects Act which provides that:
... This act does not'affect or interfere with the right
of any person who is not a member of the Association to
offer or provide services similar to those offered or
provided by .a landscape architect in the Province of
Ontario.
DISCUSSION AND ORDER
Except for Anderson, no case was cited involving how the Board
should view the product of an employer in its attempt to comply
with a Berry order. There is a great deal of jurisprudence dealing
with how a panel of the Board ought to read a class standard, and
a number of rules have been developed concerning the application of
the "best fit" principle. Counsel for the Employer suggested that
if we find that we have jurisdiction to review the Employer's
attempt at compliance with the Berry order, then. we should bear
these rules in mind.' The jurisprudence of the Board in determining
a classification grievance is set out in Blahut, 1550/90
(Dissanayake) at pp.5-6:
It has been said that in determining a classification
grievance, the Board's task is "... to decide first
whether or not the grievors are properly classified in
their existing classification [Re Brick, 564/80
(Samuels) at p. 49]. It has also been held that in order
to find that a position is improperly classified there
must exist a substantial difference between the job being
31
performed and the job described in the class standard.
In Re Dumond, 1822/90 (Kaplan) at p. 20 the Board stated:
There is no reason, in our view, to interfere with
the longstanding jurisprudence of this Board that a
substantial difference between the job being
performed and the job described in the Class
Standard is a pre-requisite to a Berry' Order.
Whether or not there is a "substantial difference"
and what constitutes a "substantial difference"
will be a matter for the Board to determine on the
facts of each case.
Counsel for the Employer, as has been noted above, asked that
we 9pply this jurisprudence in the case before us as if there had
been no Berry order, and as if Exhibit 5 represented the class
standard to which the Grievor had been assigned by the Employer,
which assignment he was grieving. It was argued that if we did this
we would not find "a substantial difference between the job being
performed and the job described in the Class Standard [being
Exhibit 5]".
The argument of counsel for the Employer is an attractive one,
however, it overlooks the difference between examining a grievor's
duties and responsibilities in the light, of an existing class
standard and reviewing the Employer's actions in drafting a class
standard pursuant to a ~ order. In the case of~ an existing
class standard the "target" group to be "fitted" is, of necessity,
diffuse. No specific set of duties and responsibilities have been
targeted for inclusion, as is~ the case where a Berry order has been
issued.
32
Also, while recognizing that a class standard may ordinarily
include a number of different positions, this would rarely be the
case where the standard was prepared in order to comply with a
Berr_~ order, where a single position has been targeted by the
Board. In the case before us, the Employer did. not attempt to
demonstrate the propriety of including.the position set out at page
2 of Exhibit 5: ".Regional Co-ordinator of Landscape Architectural
Services" in the class standard, except.for its argument that more
than one position could be included in a class standard, and that
the. Board had no jurisdiction to interfere where management had
done so. In the absence of special facts, it is inappropriate, in
purported compliance with a .Derry order, to add a position to the
class standard in a case that relates to another position and to
which latter position the order was directed. Accordingly, we find
that the Employer failed to comply with our order by adding the
first two paragraphs on the second page of Exhibit 5, and by its
references to this position on page one.
In reviewing the compliance of the Employer with the order
made in our decision of June 20, 1990, we are mindful of the
~ur~sprudence of the Board in a usual "best fit" case that:
Class standards are not intended or drafted to be a
compendia of job functions. By their very nature they
describe, in general terms the role of an employee within
the public service and do not nor are intended to contain
an exhaustive list of functions or duties to be carried
out by persons within the Standard; nor are class
standards intended to designate tools or methods by which
the employees are to fulfil their duties.
33
(Sovereign, 241/ (Low) at p.6, Lcited with approval in
Westover, 752/91 etc.(Kirkwood) at p.7)
At p.8 of the Westover case, the Board stated:
As class standards are a general description of a class
of jobs, they cover a broad spectrum-of duties and
functions, against which a particular job is measured.
The purpose of the position is only one factor to
consider.
We are also mindful of the rationale of Vice-Chair Roberts in
Parke[ 1528/88, at p.7, adopted in O'Brien-1485/91 (Verity) at
p.16:
In classifying a job, the "typical duties" set forth in
the class standard are not the sole determinants of
classification. Consideration also is given to whether
a class standard is most appropriate to a job in terms of
level of responsibility, complexity and qualifications of
incumbents.
In the light of the above, we would expect that a class
standard prepared by an.employer as a result of our order, having
a clearly identified position, would make it clear by express
language that the position involved an incumbent in carrying out
his or her duties and responsibilities throughout the province.
Inasmuch as one of the other principal areas of dispute
between the parties at the time of the original hearing related to
the role of the Grievor as a co-ordinator of the delivery of
landscape architectural programs throughout the province, the
language of Exhibit 5 is sufficiently ambiguous as to cause us
concern, inasmuch as it only refers to "regional co-ordinators".
This difficulty cou]d be overcome if the language were changed to
34
ensure that this aspect of the class standard was free from
ambiguity.
As was noted in the Parker case, in classification cases
"typical duties" can be affected by other considerations including
"level of responsibility." In the absence of clear reference to
the province-wide nature and to the co-ordinating function in the
statement of the typical duties, the Employer has missed the mark
in its general description.
At the same time, we find the Union's attempt at drawing up
its version of an appropriate class standard (Exhibit 7), too
frequently departs from a general description that covers a broad
spectrum of duties and functions against which a particular job is
measured. The fact that the standard is the product of a Berry
order does not render inapplicable significant portions of the
earlier jurisprudence of the Board, above referrred to, and the new
class standard is not intended to represent a recitation of ~the
Grievor's duties and responsibilities. Although it is the
Grievor's job for which a class standard has been prepared, it is
not limited t~ the Grievor's job, nor is it required to be "a
compendia of job functions". The general rules applicable in
ordinary classification cases must be a~apte~ to meet
· requirements of a Berr_r~ order.
As noted above, the Employer urged us, if we concluded that
Exhibit 5 does not amount to a proper compliance with our earlier
order, and if we accept the decision of the Divisional Court in
Anderson as binding on us, to remit the matter back to the
Employer. The. Union, also relying on the reasons of the Divisional
Court in Anderson, requested us to either accept its drafting of
the class standard (Exhibit 7) or "instruct management to alter or
amend the class standard to reflect properly the duties and
responsibilities, etc." of the Grievor (Anderson at p.16).
At p.21 of Anderson, the Divisional Court made it clear that:
It would be entirely a matter for the Board whether it
considers this or any other case appropriate for the
exercise of its remedial jurisdiction to review the
content of a class standard and instruct management to
alger or amend it. The Board might take the view that
such cases would be rare and that the power should only
be exercised in extreme cases .... [H]owever reluctant
may be the Board [to] exercise such jurisdiction, the
power is in /aw available to the Board in any cases it
considers it necessary in order to establish a proper
classification pursuant to a Berry-type direction.
The Employer failed to adequately express in its draftsmanship
the province-wide and co-ordination functions above referred to.
By this or~er we instruct management to alter or amend' the class
standard set out in Exhibit 5 to reflect properly the provfnce-wide
and co-ordinating duties of the Grievor.
At he same time, in responding to the Union's submissions:
36
1. We are not satisfied that the Grievor deyeloped "internal
policies, procedures, standards, guidelines'and manuals on the
methods and materials for site development construction and
maintenance functions" as set out in the second paragraph of
Exhibit 7, .and we have concluded that the word "recommending"
better represents the nature of what the Grievor does in these
circumstances. Substituting the word "developing" for the
word "recommending" 'leaves the impression that the Grievor's
responsibility is at a higher level than it actually is. The
use of the word "preparing" sufficiently indicates the
Grievor's iavolvement in the process.
2. We do not regard the choice of language in paragraph 2 of
Exhibit 5 (third last sentence; to require the addition of
"for use in the field" to adequately cover the general
description of the class of job intended to be covered.
Similarly, we do not regard it to be necessary to add the
words "staff, interested public and consultants" to the second
last sentence in Exhibit 5, as was done in Exhibit 7. In
keeping with the intention of avoiding too great particularly,
the language of the second last ~ sentence of the second
paragraph of Exhibit 5 would be sufficiently descriptive if it
read: "They develop and conduct training seminars on landscape
architecture issues." For the same reason, there is no reason
to particularly mention a committee that the ~rievor' has
chaired and the 1,~st sentence in paragraph 2 of Exhibit 5
37
should, be amended so that it refers to a genera]
responsibility to chair special committees of a certain kind.
3. we do not agree with the suggested change in the first
sentence of paragraph 3 of Exhibit 5. Once.again, Exhibit 7
has chosen language which is too particular.
We have also concluded that the weight of the evidence does
not ~ndate a requirement that an incumbent hold membership in
the Ontario Association of Landscape Architects and that there
is no reason to depart from the principles enunciated in the
credentialism policy referred to above.
5. We have also concluded that the Employer's skills and
knowledg~ requirement: "well-developed administration,
negotiation, interpersonal and communication skills"
adequately addresses this skills and knowledge component.
We are of the view that the Divisional Court, in Anderson,
provided that the Board could address problems arising out of
disputes concerning the drafting of~class standards following the
issuance of a ~ order employing graduated responses. When the
Board concludes that an employer has not prepared an adequate class
standard, it is unnecessary for the Board to draft one and order
the Employer to incorporate it. If this we¢'e done in many cases,
there .i.s a danger that the Board would he called upon to do so in
.38
all cases. For the sake of the relationship between the parties,
we have chosen to highlight the areas where we regard the
provisions of Exhibit 5 to be deficient rather than to draft what
we regard to be a class standard that complies With our order, and
leave it to the parties to work out a suitable accomodation. This
does not mean that we would not draft the standard in an
appropriate case, more like the Anderson case, where there was
clearer evidence of management's recalcitrance.
We urge the parties to meet without delay and draft a
corrected classification. We note that our original order was
signed in June of 1990. We feel that it has taken far too long to
comply with our order.
The Board, of'course, will continue to retain the jurisdiction
as set out in the original award.
Dated at Toronto this ?th day of April, 1993.
M. R. Gorsky- Vice Chairperson
I..~he(m~on - Member
'Toole - ~4ember