HomeMy WebLinkAbout1989-0198.O'Kapiec.90-02-28 " ' ~ ' ' ~:' ONTARIO EMPLOY'~SDE/-A COURONNE .'~
· CROWN EMPL 0 YEE$ OE L 'ON TA RIO
GRIEVANC,= -COMMISSION DE
SETTLEMENT R :GLE ENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G IZ~ ~ SUITE 2100 TE&EPHONE/T£L~PHONE
t$0, RUE DUNDAS OUEST, TORONTO, (ONTARIOJ M5G IZ$- 8UREAU 2100 (41~) 595-0688
i98/89
IN THE HATTER OF AN ARBITRATION
Under
TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (O'Kapiec)
Grievor
- * - and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
Before:
M.R. Gorsky Vice-Chairperson
M. Lyons Member
M. O'Toole Member
For the Grievor: J. Kovacs Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
For the Employer: D. wakely Counsel
Winkler, Filion and Wakely
Barristers and Solicitors
Hearings: August 15, 1989
December 12, 1989
Decisio~
The grievor, R. O'Kapiec, filed a grievance (Exhibit 1) on January
9, 1989, claiming that the position which he occupies is improperly
classified. Mr. O'Kapiec's position title is that of Computer
Technologist with the Ministry'of Transport and he works at the
head office of the Ministry in Downsview, Ontario. He is within
the Highway Engineering Division of the Ministry, which has as its
purpose the design and construction of highways and bridges which
includes adjunct activities involving light standards and
electrical details.
The Highway Engineering Division is divided into two offices: (1)
Structural and (2) Highway Design. The Highway Design office
contains a number of sections ~including: (a) Highway Standards
(which is concerned with reviewing specifications to ensure that
they meet the standards which have been established); (b)
Electrical Section; and (c) planning and design.
The Structural office, where the grievor works, is concerned with
the production and design of highway structures such as bridges and
culverts. The Structural office contains a number of sections:
(a) Design; (b) Bridge Management; (c) Administrative and (d)
Procedure.
The grievor is assigned to the Procedure section of the Structural
office, which is divided into the following groups: (i) Standards,
which is concerned with structural standards; (ii) Administrative,
which is concerned with clerical matters; and (iii) Computers (this
may not be the correct name, as the grievor acknowledged) but it
is this group to which the grievor is assigned. The work of the
Procedure section is devoted to the development of bridge programs,
which were described by the grievor as tools used in the design
stage o~ bridges. The programs (with an emphasis on computer
programs) used in this function are aides for those in the Design
section of the Structural office.
The engineering staff in the Design section of the Structural
office are responsible for designing structures, with draftpersons
in that section and office producing production documents (also
referred to as contract documents, furnished to contractors
performing construction work) of the designs developed. The
grievor interacts with th~ engineering personnel and draftpersons
through hi~ work on the graphic computer packages which assists
those who are responsible for the design work (engineers) and those
who render the production documents for such designs
(draftpersons).~ He provides analysis services and returns ~n
results, employing the 6omputer graphics packages.
The grievor testified that he also performed, what he referred to
3
as, preliminary drawings for design engineers.' These were rendered
from notes furnished by design engineers, also using a copy of the
planning report which was furnished to him. He referred to this
function as involving some design work.
The design (preliminary or final) is ultimately the responsibility
of a design engineer. When delivered to the grievor, he uses
computer programs to analyze the designed structures, which
function is to assist in the production of a structure. In
addition to ~using the programs, the grievor is involved in
instructing certain of the persons he comes into contact with in
the operation of the computer programs. This part of his job
involves him in the production of some computer graphics.
The grievor is also involved in the operation of certain bridge
programs which' are concerned with geometry and re-bar schedules
(which involve structural steel). The grievor also'uses computer
programs which involve a bridge inventory system that keeps track
of the'history of a structure, including maintenance and periodic
updating. Data is usually furnished by others and is entered into
the computer by the grievor. In this way, ~ running inventory is
maintained in an efficient and accessible fashion. Although many
words were used, the grievor characterized the larger part of his
job duties involving the use of computers as being related to
analysis of information. He referred to his analysis of data
furnished by others, and converted either into computer inputs or
4
outputs. He stated that his involvement in these duties could be
attributed to a shortage of staff and an accumulation of work,
which would normally be performed in-the design sections but with
which he had become involved in an endeavour to cope with the
overload. The grievor also referred to his occasional involvement
in complex or involved projects which were handled entirely within
the Procedure section, where he would be involved in the production
of contract documents. By complex or unusual projects, he meant
those involving unusual shapes or designs.
The grievor was first hired by the Ministry in 1965, with the
position title of Junior Draftsman, with the class title of Drafter
1. By June of 1980 he heid the position title of Senior Draftsman
'and had the class title of Drafter 3. On June 6, 1980, after an
evaluation, the grievor was given the higher class title of
Designer 2, with the new position title of Computer Technologist,
effective December i, 1979. He retained t~e same class title and
position title to the date of the grievance.
The Designer 2 classification (Exhibit 2) classification is as
follows:
"CLASS DEFINITION:
This class covers the positions of ~mplOyees performing
responsible architectural preliminary design work or
~tructural, sanitary, mechanical or electrical engineering
design work under general supervision. As members of
technical-staff assigned to construction and' maintenance
projects, these employees are responsible for the production
of complete designs in their area of specialization, including
drawings, draft specifications and estimates of costs. These
employees may supervise designers, draftsmen Or technicians
and are expected to develop and maintain effective working
relationships with others on the project. Supervision is
exercised on these positions by a divisional supervisor or
other professional staff who provides professional guidance
and co~ordinates various phases of the design activity and
checks the completed work for technical competence.
CHARACTERISTIC DUTIES:
As an architectural designer,prepare preliminary sketches of
a complgte project to satisfy the' needs of a departmental
client.
As a sanitary engineering designer,prePare drawings and draft
specifications for the'complete sanitary engineering projects;
estimate quantities of materials required and approximate
costs; may occasionally supervise the sanitary engineering
design aspects of construction and maintenance projects in the
field.
As a mechanicaI engineering designer, prepare drawings and
draft specifications for the complete mechanical engineering
project. Estimate quantities of materials'required and
approximate costs; may occasionally supervise the mechanical
engineering aspects of construction and maintenance projects
in the field.
As an electrical engineering designer, prepare drawings and
draft specifications for the entire new or maintenance
projects; ~estimate quantities of materials required and
approximate costs; may occasionally supervise the electrical
aspects of construction and maintenance projects in the Yield.
As a structural engineering designer, personally design
structural aspects of complete construction projects and
prepare drawings and plans; check and approve shop drawings
prepared by others; estimate quantities and costs of materials
r~quired; may occasionally supervise structural phases of
construction and maintenance projects in the field.
QUALIFICATIONS:
1. Grade 12, preferably graduation from a technical school in the
appropriate subj'ect speciality or an equivalent combination
of education and experience; good knowledge of subject
speciality as it relates to the architectural, sanitary,
electrical or mechanical design aspects of construction and
maintenance.
2. Three years as Designer 1.
6
o~r
2. A minimum of twelve years' progressively responsible drafting
and design experience in the speciality indicated.
3. Demonstrated ability to carry difficult construction and
maintenance design problems to completion; initiative in
organizing Work programs and ability to work co-operatively
with technical staff; ability to exercise sound judgment.
December 1968"
The position specification and class allocation form applicable
the grievor at. the time of his attaining the Designer
classification (Exhibit 3) is as follows:
"2. PURPOSE OF POSITION
To provide a complete range of computer system documentation
services to all M.T.C. personnel and outside consultants and
to perform responsible design and project review work.
3. SUMMARY OF DUTIES AND RESPONSIBILITIES
Under the general supervision of the Methods Engineer:
(1) Prepares complete design drawings by:
40% - studying and interpreting planning reports, survey plans,
engineer's design notes etc.,
- deciding, designing and improvising details that do not
require a professional expertise, but require highly
technical sub-professional skills.
- investigating structure types and estimates quantities add
cost of material required.
- determining geometric layouts and alternatives of bridge
structures.
- executing all necessary calculations and preliminary
analysis to determine struCtural size.
- specializing in the design drawings of unique structures ie
(bridge at Ontario Science ~entre).
7
- interpreting correctly, planning and design requirements for
different structure~types, and producing error-free
drawings.
(2) Co-ordinates, schedules, prepares and processes data for
Structure Inventory System and related programs (3 distinct
sub-phases - Edit, Update, Reporting Data) by:
50% - correlating and evaluating approved design data for accuracy
from structural office, M.T.C. personnel, municipal offices
and outside consultants.
- instructing and assisting other personnel in the preparation
of design data for computer processing.
- co-ordinating and preparing regional and office computer
related data for processing through the Batch System and
also on-line at the Time Sharing option (T.S.O.) terminal.
- reviewing and checking output, making corrections and
adjustments to ensure final correctness and completeness of
Structure Inventory System and related program.
- determining when changes and revisions are required to the
Structure Inventory Systems.
- prepares, designs and draws preliminary and approved
structural data sheets for the Computer System Branch.
- prepares design data for input to structural computer
programs.
(3) Performs other related duties such as:
- operating main and remote computer terminals.
10% - visiting job site. to evaluate design requirements.
- as assigned.
4. SKILLS AND KNOWLEDGE REOUIRED TO PERFORM.THE WORK
Considerable progressively responsible exDerience in
structural drafting and Bridge design. M.T.C. practices and
procedures related to structural office. Knowledge of
materials, structural analysis, soils and foundation
engineering..and bridge construction. Experience in quantity
and D4 estimates. Good oral and written communication skills
in dealing with M.T. C. Personnel, colleagues and outside
consultants. Good organizational skills and a general
knowledge of data processing.
8
6. CLASS ALLOCATION
class title - Designer 2
class code - 12242
occupational group no. - TS-03
effective date - December 1, 1979
I have classified this position under authority delegated to me by
the deputy minister and in accordance with the civil service
commission clas'sification standards for the following reasons:
A. .Incumbent performs responsible design and project review
work under general supervision.
B. Responsible for the production of complete design
drawings specializing in the design drawings of unique
structures ie. bridge at Ontario Science Centre.
C. Prepares designs and draws preliminary and approved
structural data sheets for-Computer System branch."
The grievor's position specification 'and class allocation dated,
March 21, 1989 (Exhibit 4) is as follows:
"2. PURPOSES OF POSITION
To perform, responsible design, and detailing review work on
structures and provide a complete range of computer system
documentation, support and services to all Ministry personnel
and outside agencies.
3. DUTIES AND RELATED TASKS
1. Prepares complete design documentation for preliminary,
new, and rehabilitation projects by:
- studying and interpreting planning reports, foundation
reports, survey .plans and engineering notes;
- investigating, designing and improvising details
requiring highly technical sub-professional skills;
- investigating various structure types and materials,
determining geometric layouts and alternatives taking
into account factors such as slopes, topography, design
and cost to obtain best appearance while conforming to
codes and design specifications
9
- conducting cost and comparison studies and recommending
preferred alternatives;
- executing all necessary calculations' and preliminary
analysis to determine structural size while conforming
to Bridge Code and design specifications;
- interpreting ~orrectly planning and design requirements·
for different structure types and producing error free
contract documents;
- specializing in the design of complex and unique
·structures.
2. Coordinates, schedules,prepares and processes design data for
computer graphics, bridge clearance, structure inventory,
bridge design and geometry and related structural programs by:
- correlating, ·evaluating, checking 'and preparing input data
for accuracy from Structural Office, Ministry personnel,
municipalities, consultants and other outside agencies, to
ensure end results as required for design specifications and
code requirements;
- coordinating, preparing, reviewing and checking computer
data for processing, making corrections and adjustments to
ensure final correctness and completeness of structural
programs;
- designs,.prepares and draws preliminary and approved
structural data sheets, instructions-and manuals for
Computer Systems Branch and structural programs (e.g.
OMBAS);
- using computer graphics for input Of structural design data
for production contract drawings and documentation;
- coordinating compu'ter security measures ensuring backup file data ·storage in case of system service interruption;
- instructing and assisting in the preparation and execution
of design data for computer graphics and processing;
- acting as custodian of Bridge Clearance (OSCLIS) and
Structur~ Inventory (OSIS) program.
3. Performs Other related duties such as:
- operating T.S.O. terminals, R.J.E., slave printers and all
P.C. equipment;
- attending'meetings and discussions regarding problems in
10
design and solutions with other Ministry personnel,
Municipalities, Consultants and other outside agencies;
20% - drafting and/or checking drawing, sketches, reports and
manuals for structural data as supplied from all sources;
- visiting structure sites as directed to assist in the
assessment of site conditions and construction problems;
- discussing problems, requirements and solutions with
municipalities, railway, consultants, etc.
- provide technical guidance, training and direction to
structural personnel and other sections or agencies as
required (e.g. Computer Graphics, Training).
4. SKILLS AND KNOWLEDGE REOUIRED TO PERFORM JOB AT FULL WORKING
LEVEL
Considerable prggressively responsible experience in
structural drafting, bridge design and Ministry of.practice,
policy, codes and procedures related to the Structural Office.
Knowledge of strength of materials, structural analysis,
soils, foundation engineering and bridge construction.
Experience in-quantity, special provisions and D4 Estimates.
Good oral and written communication skills in dealing with
Ministry personnel, colleagues, consultants and outside
agencies. Good organizational skills and a general knowledge
of data processing, computer graphics and drafting skills."
The position taken on behalf of the grievor was that Exhibit 3 was
accurate as at its date. He acknowledged that he had a role in the
preparation of Exhibit 3, that he did not disagree with it or his
classification as a Designer 2 at that time. He also acknowledged
that during his progression through the Drafter class series, a
fundamental part of the job involved the use of the computer. He
did not take issue with the contents of Exhibit 4, including the
percentages shown. He testified that his duties "not so much
changed, but had grown between 1980 and the date of the grievance"
11
According to the grievor, in 1975 or 1976, the Procedure section
of the structural office was for~ed and he was assigned to that
section at that time as a Senior Draftsman, with the class title
of Drafter 3. He stated that the Procedure section had then run
a number of what he'referred to as "small, internal computer
programs" and he became involved in the operation of these
programs. He was told that duties and responsibilities were to be
reviewed with the new class title of Designer 2 being considered
for him on a reclassification from Drafter 3. This occurred, ~as
above recorded, and ~he grievor did not take issue with the
correctness of the reclassification which occurred in 1980.
The position taken by the grievor was that the content of his job
had not changed since his reclassification in 1980, but that there
had been a change in the projects he was assigned to and how he was
to carry them out. His major point was that his work using
computer programs had evolved. He referred to the growth of an
entirely new computer graphics "package", and to his greater
involvement in geometry and rebore analysis.
The grievor acknowledged that he had been involved in computer
applications prior to 1980. He stated that on his reclassification
as a Designer 2 in 1980 he became involved in the bridge inventory
program. Since then his involvement i~ computer applications has
evolved and become greater. He described his role as
"troubleshooter," were other employees were experiencing difficulty
12
in inputting data, or where the output information had problems
associated with it. In such circumstances, he described his role
as assisting employees to analyze the output da~a with a view to
helping them come up with a workable solution.
He acknowledged that his involvement with computers as part of his
work started prior to his reclassification as a Designer 2, when
he was classified as a Drafter 1 and held the position title of
Draftsman. He then created input data for reinforcing steel and
concrete quantities and highway geometry.
In 1980, the grievor became involved with the bridge inventory
System computer program: "OMBAS, and a program for bridge analysis
(bridge clearance and maintenance): OSCLIS". He stated that his
work on OSCLIS required him to work in cooperation with the
engineering staff.
The grievor also referred to his work with a graphics computer
package. He described this work as having started within the last
one and one-half years and as requiring him to absorb a good deal
of information. He described those ihvolved with this program as
having to engage in a good deal of self-education and to
participate in a three day instruction course. He referred to the
"package" as being a "large, comprehensive one which furnished a
way to produce drawings". He stated that as he became familiar
wi~h the program he provided advice on its operation, to other
13
employees. He acknowledged that as very few.of the office staff
are now engaged in this type of work, his involvement in this area
of advice and assistance is now minor.
The grievor stated that he felt the statement of duties and
responsibilities set out in Exhibits 3 and 4 were an accurate
general description and that Exhibit 4 reflects a change from
Exhibit 3. He described the essence of the change as reflecting
a lessening of his involvement in the .design function:
paragraph 1 in "3. Duties and related tasks," and the growth of the
functions in paragraph 2 in "3. Duties and related tasks," which
does not involve actual design work, but does involve the
preparation of data for input into a computer program, and the
analysis of such data and the analysis of output based on the
initial inputs using the programs. He also referred to his greater
non-design involvement in the area of computer graphics. .Some of
the kinds of non-design work he referred to w~re the bridge
inventory project, the gathering of data of plans, the.listing of
each component, structural dimensions, type'of construction and
maintenance data. Other sections rely on this data in the
performance of their work, such as conducting inspections and
maintaining bridges.
In referring to the b~idge clearance program, the grievor indicated
that the data was input by others, however, he was responsible for
the ongoing maintenance of the program, including its accuracy and
14
its updating, the production of a manual and-the distribution of
data. The OMBAS program is used by him in the production of
manuals. He claims to have performed minor programming, however,
I am satisfied that he does no significant programming and his
real responsibilities in relation to the computer programs are in
relation to the analysis of input and output data. An additional
example provided by the grievor was'the geometry program, used by
engineering designers and draftpersons in the laying out of bridge
limits, reinforcing steel and concrete programs.
The persons who the grievor interacts with in the conduct of his
duties are: '
1, The Structural office staff
2. Regional staff
3. Consultants
4. Suppliers
5. Employees of other Ministries
6. Staff of governmental organizations
7. Ontario Hydro,
and he acts asa liaison person to supply general information, data
and problem solving services. An example of such interaction
involving input concerned the geometry program, where good results
were not obtained by the person running the.program. That person
could consult with the grievor (as contact person) to analyze.the
problem and attempt to solve it. In the case of output data, the
15
grievor could, for example, be approached by a representative of
Ontario Hydro for a list of Ministry owned structures in a
particular area.
In describing the use of computer graphics as a tool, the grievor
acknowledged that the work could be performed.manually but the
computer graphics package enabled it to be done'more quickly and'
with fewer errors. The computer graphics program has been in the
grievor's offic~ for approximately two years. The grievor was
frank in acknowledging that the essential change in his duties and
responsibilities from the time of his reclassification had less to
do with a change in the description of his duties and
responsibilities. He said that the duties and responsibilities
were not that different. More of the what he had formerly done
manually, he now performed using a computer and his design related
duties had diminished as his computer related duties, w~ich did not
involve him in the actual preparation of design documentation,' had
grown. He succinctly phrased it.by saying that while he was still
doing the same thing at the time of the grievance as he did in
1980, he was now doing it more with the aid of computer programs.
He also acknowledged that while structural computer programs were
not new to his work experience, there were now more of them and
they changed over time and were being technically upgraded on a
r~gular basis, although he acknowledged that 60% of the programs
used by him ~had been in existence for at least 15 years. However,
these programs had evolved over time as they. were technically
updated. The grievor did not say that he uses computers in a
different way than he did in 1980. .He did say that he uses them
more frequently and that there are more programs.
Subject to his greater use of computers in performing his duties,
his interaction with employees was not much different than it was
in 1980.
The grievor also acknowledged that although the instructional
component referred to in paragraph 3 (2) of the "Summary of Duties
and Responsibilities" of Exhibit 3, was not as well developed as
it is now. It was correctly included in Exhibit 3.
Elizabeth Brown, a Human Resources Consultant with the Ministry of
Transportation gave evidence on behalf of the employer. She was.
.requested to review the grievor's duties, and responsibilities in
order to sea which classification was most appropriate for him. She
testified that the. grievor agreed with the Contents of Exhibit 4
and this is consistent with his evidence. She testified, as did
the grievor, that the major difference between the earlier and
later position specification was the increased percentage of time
devoted tu working with computers in the performance of the job
duties.
~17
MS Brown stated that her examination disclose~ that the grievor's
duties and responsibilities did not fit within any other class
standard as ~.alT as that of Designer 2.
Counsel for the grievor agreed that the grievor's duties and
responsibilities did not fit into any other class standard but took
the position that they no longer fit within the Designer 2 class
standard, and that we should, in accordance with the Berry case,
remit the matter to the employer with a direction to create an
appropriate class standard for the grievor.
On the admission of the grievor, no new generic duties were added .
to his job between 1980 and the time he filed his grievance. The
grievor agreed, and we find that his job duties as they existed in
1980, and as they are described in Exhibit 3, fit comfortably into
the Designer 2.class standard.
As above noted,the essential case of the grievor was that while his
duties did not change, they evolved and grew. While the content
remained the same, the projects he worked on changed and his
computer related duties increased even though he had started to
work with computers as part of his job prior to 1980, and his
design work decreased between 1980 and 1989. The grievor's early
involvement with computers is evidenced from the position title he
has had since 1980: Computer Te6hnologist.
18
It is evident that, since 1980, the grievor has devoted more of his
time to the use of computers in the performance of his duties and
responsibilities.
The grievor's position was that: he now performs design work using
computer assisted design programs (CADD). His evidence was that the
computer always played some role in' his carrying out design
functions, he mereiy uses it more often. The grievor stated that
the computer programs used by him had become more sophisticated and
are now in a more advanced form. We would.find that while this
may be the case, there is no significant difference in the ·skill
level called for in the use of the programs by the grievor. He still .
carries out a design function, albeit less' frequently, but with a
computer program as the design tool. The manual method of
performing the design function is now used by him less frequently.
With the computer, he does the same thing more quickly and more
efficiently. 60 to 70% of the computer programs he uses are not·
new, but are developed and refined versions of programs used in the
section for at least the last fifteen years.
Interactions with persons inside and outside the office are the
same as they were in 1980. They merely vary from job to job.
The grievor is still involved in training staff, as he was in 1980.
The grievor acknowledged his duties fit comfortably into the
Designer 2 class standard at the time he was reclassified in 1980.
Assuming that this was the case in 1980, his essential duties are
still the same, although the waY he performs them has changed
because of his greater use of computers and his preparation of
design drawings is less than in 1980.
Counsel for the employer argued that this is not a sufficient basis
fgr concluding that the grievor is now improperly classified. From
the evidence, it was established that in 1980 the design component
of his job involved 60% of design duties, compared to 40% for
computer related duties. At the time of the grievance, the
relation was reversed.
Counsel for the employer argued that the mix of duties had not
changed but that the mix had been shuffled to increase the computer
involvement in performing the agreed to duties.
Counsel for the employer argued that %he grievor had acquired no
new skills in the computer between 1980 and the filing of the
grievance. Counsel for the union acknowledged that the grievOr was
not a computer expert and that the job duties did not require the
skills of an expert in 'computers. The analysis of data would
require the same skills and abilities if the data had been produced
manually and without the aid of computers. Counsel for the grievor
also agreed that the grievor had not acquired fundamental new
skills in using the' computer between 1980 and the filing of the
grievance. 'I can not agree with counsel for the grievor that new
2'0
job duties were added after 1980. While I .can agree that less
design work, in the sense of preparing drawings, is now done, and
that the situations were the job duties are carried out changed',
the generic duties are the same. Only the mix has changed, as above
noted.
Counsel for the empioyer relied on Policy Grievance 597/84 (E.B.
'Jolliffe, Q.C.). In that case, the union grieved (at page 3) that
there had been a de facto creation of a new classification or that
the existing classification was being revised and that the employer
had refused to meet within 30 days to.negotiate the Salary range
for the new or revised classification.
At page 20 of the Policy Grievance, the Board concluded that:
"Changes in the assigned duties and responsibilities of the
position in question do not constitute revision of any
classification or the ~mendment of any standard or the
creation of a new classification, but such' changes may give
rise to employees grievances under Section 18(2) of the Crown
Employees Collective Bargaining Act, which would be arbitrable
and would be decided kY reference to existing standards."
Earlier in the award (at pages 16 and 17), the Board addressed the
subject of permissable changes in the way in which a job is
performed:
"We have no doubt that changing environmental conditions and
needs over the past decade have had an impact on the duties
performed by the Ministry's Technicians. Without knowledge
of the details, it is safe to assume that there have been
changes in organization and assignments within the Ministry.
Nevertheless, as we have already pointed out, such changes are
permissible as long as they do not make an employee's assigned
functions inconsistent with the standard for the position in
which he is classified. If inconsistency.arises, the employee
h'as recourse under section 18(2) of the Crown Employees
Collective Bar~aininq Act and Article 5.1.1 of the collective
agreement. One such case was Sisson 57/82."
Counsel for the employer also referred to Brick et al 564/80
(Samuels). In that case the grievors alleged that they had been
improperly classified as Drafter 2 and claimed that they should be
classified as Drafter 3. In that case, the grievors used Computers
to perform certain of their duties. The Board stated at page 16':
"use of the com~.uter has not changed the nature of the plans
produced by the Senior Technicians' plans but it has simplified the
job of calculations involved in the preparation of plans." Dealing
with another grievor, the Board stated at page 23:
"His work involves extensive use of the computer. He is
familiar With various pieces of hardware and employs ICES
COGO, HORVER, LEPLOT, ,MTC COGO, CONVER (used for conversions
from one measurement system to another), and TSO/SPF (which
is Time Sharing Option/Structured Programming Facility,~used
for editing data and other purposes). The computer has not
changed the type of work done, but has made the preparation
of plans simpler."
At page 52 of the Brick case, the Board stated:
"The drafter solves the complications of his job through .the
aid of technical expertise. In particular, he~ uses the
computer and some of the programs require a high degree of
technical knowledge'to use them properly."
Counsel for the employer also referred'to Wilson Concrete Products
Lt__~d 3 L.A.C. (2.d.) 32, at page 34:
"In our view, the introduction of the Drott Travel Lift cannot
properly be said to involve the creation of a new job within
the meaning of art. 17 of the collective agreement. The
determination of' the content of any particular job
classification is to be made having regard to the whole of an
employee's work in that classification. In some industrial
plants where the whole of an employee's time is spent
operating' a particular, machine, and where this job is
22
described in terms of that machine, then it might be that the
introduction of a new machine is equivalent to the
introduction of a new job. Where, however, a job is described
in terms of the performance of certain general tasks then a
change in the equipment with which those tasks are performed
does not necessarily constitute' either a substantial change
in the job or the creation of a new job."
Counsel for the union relied upon Fenske 494/85 (Verity). In that
case, the grievor had filed a..grievance alleging that he had been
improperly classified as a Services Officer 1 and sought
reclassification as a Services Officer 2. At page 2 of the Fenske
case the Board stated:
"Following a four day hearing, the Board issued a Decision
dated March 39,~ 1987 which found that the Grievor was
misclassified as Services officer 1 but was not entitled to
the classification sought. The thrust of the. Board's award
was that although the Grievor performed most, if not all, of
the core duties of the Services Officer 1 classification,
newly acquired duties and recognized expertise in the
electrical discipline of Fire Alarm Systems placed the Grievor
beyond a comfortable fit within the Services Officer 1 Class
Standard."
Counsel for the union argued that in the case before us a similar
situation had developed between 1980 and the filing 0f the
grievance. We can not find that Mr. O'Kapiec had acquired~new
duties. The generic duties were the same, the projects may have
changed (where they were carried.out) and he did more of them with
the assistance of computer programs.When pressed, in cross
examination, 'the grievor admitted as much. However, he then
endeavoured to treat the enhanced role of the computer in carrying
out his duties as the equivalent of new duties being added to his
job. He always used the comDuter in the performance of his duties,
and the way he did so did not change in any significant way. There
23
was no newly acquired 'expertise, as was the .case in Fenske. He
evidently used his existing expertise better, but doing a job
better is not the same thing as being called upon to perform new
duties: as was sta~ed in Fernick 3/86 (Brent) by the Public
Service Classification Rating, Committee, at page 26:
"As we indicated at the beginning of the decision, the proper
classification of a job is a matter which is independent of
the quality of the performance of that job. There is no doubt
in our minds that the grievor is an invaluable member of the
district staff, and that over the years changes in technology
have affected the job he does. In our view those changes were
adequately recognized in the previous re-classification of his
job from OM 15 to OM 16. We can see no justification on the
evidence before us for reclassifying the job to the OM 18
level."
Much of what we have said above is predicated on a finding that the
grievor was properly classified as a Designer 2 in 1980. Counsel
for the employer says this must be so for a number of reasons: The
grievor's acknowledgment that his classification was proper· in
1980, along with the evidence that the job duties remained the same
to the date of'the grievance, with only the mix.changing. That is:
less design, more computer application.
Our ~inding that the gri~vor now performs the same job duties as
he did in 1980 does not mean that those duties now fit comfortably
in the class standard if they did not do so in 1980. The argument
made by counsel for the employer that the grievor's acknowledgment
that he was properly classified in 1980 asa Designer 2 settles the
matter, because those duties have not changed, presumes a kind of
estoppel which does not exist. The grievor's view of the propriety
of his classification is not binding on us. We must review the
24
evidence and decide whether the grievor is properly classified on
the evidence. No case was cited which held that a grievor was
bound by his classification if it was once accepted by him as being
proper, even if it was not.
Counsel for the union, although his primary argument was that the
grievor's job duties had changed, argued that an examination of
many of the duties performed by the grievor disclosed that they do
not fit within the Designer 2 class standard.
Ex~amining the class standard (Exhibit 2) for Designer 2, which was
the only class standard filed with us, and looking at the class
definition, the design work performed by the grievor could fall
under the words: ". . . employees performing
responsible...structural...engine, ering design work under general
supervision. On the evidence, this is the only part of the class
definition that could apply, except for the' fact that supervision
is provided by" other professional staff who provides professional
guidance .... " We heard no evidence that the grievor "coordinates
various phases, of the [grievor's] design activity" or that he" ...
checks the completed work for technical competence.."
Under characteristic duties, the grievo~ could only fall under the
portion which commences: "As a structural engineering designer..."
The problem is: he does not actually design anything. He testified
that the actual design is the product of a- qualified licensed
25
Professional Engineer. The grievor renders ~ocuments to realize
the design, but he.does not actually design. The term design is
used loosely in the Position Specifications (Exhibits 3 and 4), but
on the grievor's evidence his technical ~skills do not result in a
design but in plans add other documents which carry out the design
instructions of the engineer. Where design is used in Exhibits 3
and 4, it is clear that it relates to the creation of drawings or
other contract documents. At the risk of belabour~ng the point,
the grievor does not "personally design structural aspects, of
complete construction projects", this is done b~ a qualified
engineer. He does, however, "prepare drawings and plans" and other
documents following the design plan developed by an engineer.
The grievor has always checked drawings prepared by others but
there was no evidence that he was the person with the authority to
approve them. There was no evidence to show that he estimated
"quantities of material required and approximate costs" or that he
"may occasionally supervise structural phases of construction and
maintenance projects in the field."
It is significant that of~the other kinds of designers ~eferred to
in the Designer 2 classification: architectural, sanitary,
mechanical .and electrical, the structural engineering designer is
the only one whose characteristic duties specifically provide that
such a designer actually personally designs. By his own admission
the grievor does not do so. He assists the designer in bringing
26
the design to life.
Although some aspects o'f the grievor's duties: preparing documents
and plans, and checking shop drawings, are within the Designer 2
class standard', the design function is not performed by him. Thus,
we have a class definition for Designer 2 which refers to design
work, and characteristic duties which refer to a Designer 2
"personally designing". In endeavouring to give a reasonable
meaning to the class standard, the words "design work" can be read
as going beyond the actual design function as they include design
related functions which supports the design .process. This
interpretation is consistent with the words used to define the
characteristic duties. They include not only the actual design of'
."structural aspects of the complete construction projects" but,
as well, activities which support the design process: "prepare
drawings and plans: check.., shop drawings prepared by others."
The grievor does carry out the latter two duties.
The characteristic duties do not restrict the range' 0f duties
performed by a Designer 2, provided that they are consistent with
the terms of the class definition which contemplates design support
duties. The grievor is in the Structural Office of the Ministry.
That office ~s concerned with the production and design of highway
structures. Within the Structural office, the grievor is in the
Procedure Section, and within th~at section he is within the
Computer Group. The Procedure Section is devoted to the
27
development of bridge programs which the gr!evor identified as
tools used i~ the design stage of bridges. The work performed by
the grievor, including his various computer related functions,
support the design functions and represent "design work" as
distinguished from that part of design work being _the personal
design of structures.
The tools used by the grievor to perform his "design" and
recognized design support functions more and more include the use
of computer programs. Counsel for the employer ackhowledged that
if the grievor had not used computers in the carrying out of so
called design and design support functions for over 15 years, then
the grievor would have a stronger case. The evidence discl6sed that
the grievor has used computer programs in his work for at least 15
years and that approximately 60% of them are revisions of earlier
programs. No claim was made that the use of computers was that
different from their earlier use by the grievor so as to cause us.
to conclude that there has been a change in duties.
In summary:
1. The grievor's duties'and responsibilities were in all ~relevant
aspects the same .in 1980, when he was reclassified as a
Designer 2, as they were at the date the grievance was filed.
2. The change in mix between manual and computer functions did
28
not amount to a change in duties and responsibilities - only
the mix of the work changed.
3. The increased use of computers did not alter the duties of the
grievor's job. The computer was a tool always used in
carrying out the job duties. These duties were still being
carried out, but with greater use of a tool (the computer).
4. The enhanced use of the computer was not so functionally
different from its use in 1980 as to 6reate a new
responsibility. It was acknowledged that the computer
permitted the processing of information in a much quicker and '~ .
more efficient manner. It was not shown .~hat the use of the
computer changed the nature of the final product produced by'
the grievor: drawings or data (input or output) o~ its
analysis. The computer was an aid to carrying out the duties
which remained unchanged, although they might now be carried
o~t in different environments.
5. The duties of the grievor are supportive of the design
process, being a function of his office. An analysis of the
language used in the Designer ~ class standard satisfies us
that it applied to such design support duties and
responsibilities which are carried out by the grievor.
6. The grievor's duties ~nd .responsibilities fit within his
29
present classification of Designer 2,. and we were not
furnished with evidence to show that there was a better fit
elsewhere.
Accordingly, and for the above reasons, the grievance is
dismissed.
DATED at Toron~o, Ontario this 28th day of February, 1990.
M. R. Gorsky- Vice-Chairperson
./~4. Lyons - Me~er ~
/
M. O'Toole - Me~er