HomeMy WebLinkAbout1989-1474.Karlovich.90-12-07,,~
ONTARIO EMPLOYES DE CA COURONN£
CROWN EMPLOYEE$ DE L 'ON TAR/O
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8 - SUITE 2100 TELEPHONE/T£L~-PHONE
180, RUE DUNDA~ OUEST, TORONTO. (ONTARIO) MSG tZ8 - BUREAU2100 (416) 598-0688
1474/89
In the Matter of an Arbitration
Under
The Crown Employees Bargaining ~ct
Before
The Grievance Settlement Board
Between=
OPSEU (Karlovich)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Housing)
Employer
Before: B. Keller Vice-Chairperson
J.J. Carruthers Member
A. S. Merritt Member
For the Grievor: P. Lukasiewicz
Counsel
Gowling, Strathy and Henderson
Barristers and Solicitors
For the Employer: C. Osborne Counsel
Fraser and Beatty
Barristers and Solicitors
Hearings~ April 2,'1990
April 6, 1990
JUne 4, 1990
DECISION
The grievor, a Site Services Coordinator in the Technical Support
Services Branch of the Ontario Housing Corporation, claims that
the proper classification for his position should be Community
Planner 4. The argument advanced on behalf of the grievor is a
"usage" one. That is, that a comparison of his duties with
either those of Mr. Peter Foley or Mr. Stewart McElroy, both
Community Planner 4s, justifies reclassification of his position
to the same level.
The grievor works under the supervision of Mr. McElroy. He is
the responsible landscape architect for six local Housing
Authorities (L.H.A.), in the Ministries' Central Region. He has
no responsibility for new construction Work. His duties involve
upgrading and maintenance of L.H.A. facilities. The grievor does
no work with Non-profit Housing Corporation (N.P.H.).
The position specification of the grievor was filed as an exhibit
during the hearing. To a substantial degree, it describes the
function performed by him -
Duties and related'tasks:
Provides investigative, consultative and
technical assistance for all drainage, water
supply, hard surfaces, storm and sanitary
services, for local housing authorities by:
85% - providing consultative services on
general landscape architectural, horti-
cultural, site improvement and preventa-
tive maintenance programs;
- performing on site investigations of
work required, recommending to housing
manager, site improvement items to be
included in budgetary forecasts;
- determining extent of work required,
preparing preliminary concept plans and
preliminary budget estimate for housing
manager;
- assisting in the hiring of land survery-
ors, landscape architects;
- reviewing and approving concept, prelim-
inary and final drawings and specifica-
tions prepared by consultants;
- surveying of sites, plotting and draft-
ing topographic drawings, designing and
drafting site development plans, calcu-
lating a construction estimate and
preparing scopes of work to the final
tender stage;
- assisting local housing authorities with
their in-house tenders, with advice,
drawings and specifications;
- issuing addenda to tenderers to clarify
requirements~
- evaluating tenders received and recom-
mending award;
- conducting 'site Linspections to ensure
compliance with tender documents;
- attending site meetings, resolve on-site
problems; reviewing required field
changes, calculating quantities, issuing
change orders;
2. Assists L.H.A. staff in financial aspects of work by:
15% - examining and approving consultants' claims for payment;
- examining and approving contractors'
progress payments, start of warranty and
release of holdback;
- arranging joint inspections with
C.M.H.C. Branch offices, upon request,
to obtain approval of budget funds for
modernization and improvement work on
Federal\Provincial projects.
Skills and Knowledge
Sound knowledge of the theories, policies and
practices of landscape design and site main-
tenance, construction methods and materials
supplemented by significant related experi-
ence.
Experience in contract administration of
large landscape site improvement contracts
and in field supervisor; site servicing,
plant growth.
Good knowledge of quantity surveying and unit
pricing; ability to prepare complete scopes
of work, including 4esign, drafting and
specification; good analytical and co-
ordinating skills; ability to maintain effec-
tive working relationships; tact; diplomacy;
good verbal and consultative skills; a valid
driver's license.
A~ility to carry out both boundary and topo-
graphical surveys.
Reason for Classification
Position performs site investigations, pre-
pares designs and specifications and super-
vises completion of a variety of functions
related to landscaping services.
Position estimates the cost of Work required,
inspects work in progress and approves pay-
ments; also reviews and recommends on hiring
and performance of private consultants.
Position is atypical due to'difference in
skill base required of standard,
(unreadable), diversity and complexity of
duties is considered equivalent..
As indicated above, Mr. McElroy is the grievor's superior - like
the grievor, he had responsibility for 6 L.H.A. In relation to those
L.H.A.s he performs essentially the same duties as the grievor.
In addition, he is responsible for N.P.H. new construction in his
region. The N.P.H. duties only took up about 10% of his duties
when he started but, once he became familiar with his job, rose
to approximately 40%. His job specification, also filed as an
exhibit, is a reasonably accurate reflection of his duties.
Duties and Related Tasks
Provides landscape architectural design and
site devel~opment services by:
25% - performing and\or participating in
feasibility studies including the provi-
sion of alternative concepts in site
development to ensure optimum utiliza-
tion of site features and the on-site
evaluation of existing components (e.g.
vegetation, topography, drainage pat-~
tern);
- reporting study results to appropriate
senior staff;
- designing and preparing site development
plans and specifications to the final
stage making ready for tender including
such items as storm and sanitary sewers,
surface drainage, parking areas, walk-
ways, recreation facilities, fencing,
exterior lighting, retaining walls,
plants, trees, sodding, etc;
- consulting with municipal officials,
housing agency senior staff, tenants,
etc., regarding specific requirements
and obtaining necessary approvals;
- recommending and participating in hiring
of landscape architectural consultants
and land surveyors and monitoring their
performance.
2. Recommends to Managers, Technical Services
either the approval for construction, ap-
proval with conditions or non-approval of
construction drawings and specifications by:
35% - reviewing preliminary design drawings
and specifications submitted by outside
landscape consultants for OHC projects.
- reviewing design drawings and specifica-
tions at various stages for program
requirements (e.g. O.B.C., N.B.C.,
Residential Standards and C.M.H.C. site
planning criteria, etc.) for residential
projects developed by sponsors under
Ministry of Housing programs such as
M.N.P., P.N.P., and co-operative housing
corporations.
3. Carries out on-site inspections of work in
progress to ensure compliance wits approved
plans and specifications by:
20% - attending site meetings to discuss
project details with contractors' repre-
sentatives, local housing authority
staff, sub-contractors, etc;
- resolving on-site problems with contrac-
tor, tenants, adjacent property owners,
contract administrators, municipal
officials (e.g. drainage problems, etc);
- reviewf~"~change~ to scope of work,
advising on quantities and unit prices
for revisions and recommending
approval\non approval.
4. Provides advisory landscape architectural and site development services by:
10% - reviewing maintenance portion of budgets
of various agencies making recommenda-
tions on viability and priority.
- participating in management reviews of
Housing Authorities by making comments
on effectiveness of preventative mainte-
nance programs and condition of
projects.
- assisting various housing agencies on
request with regards to site and land-
scape architecture related problems.
- participating in housing agencies board
and\or tenant meetings and making audio
visual presentations as required.
- reviewing OHC conservation
specifications and providing feedback.
- arranging and~or offering landscape and-
site improvement related technical ~
seminar and workshops to various housing
agencies.
5. Supervises one site service coordinator.
10%
Skills and Knowledge
Sound knowledge of the theories, principles and
practices of landscape architecture and design
applicable to site uDgrading for residential
projects. Experience in the preparation of
designs and scopes of work, co-ordination of
field work and contract administration normally
acquired through a degree in Landscape
Architecture and extensive practical experience
with a registered landscape architect, site
contractor or design firm. Membership in
Ontario Association of Landscape Architects.
Excellent communication, interpersonal and
consultative skills, ability to maintain
effectiue working relationship with colleagues,
consultants and contractors. Valid drivers
license. ~
Mr. McElroy and the grievor have a close working relationship.
They discuss problems and suggest solutions to one another. Each
has a particular area of expertise but have many common skills.
It was Mr. McElroy who assigned the grievor the LHAs for which
he is responsible. The responsibility for any errors of the
grievor is with Mr. McElroy.
Mr. Foley is employed in Southern Region. He is responsible for
the LNAs as well as NPHs in the Region. As such, he does both
new construction with the NPHs as well as up-grading and mainte-
nance with the L.H.A. His duties as well as time allocation
closely resemble that of Mr. McElroy. No landscape Architects
report to him.
The Board has on numerous occasions discussed the test for a
usage agreement to be successful. In Re Crockford et al and
Ministrv of Community and Social Services (1985) G.S.B. #548\83
(Roberts) the Board described the applicable legal principles as
follows:
The legal princiPles which are applicable to
classification cases based upon so-called
"class usage" are. well established, and need
not be re-stated at length in this award. It
suffices to say .that a grievor who' demonstrates
that he or she is doing substantially the same
work as an employee in a higher classification
is entitled to succeed upon a claim for that
classification. At the hearing, counsel for
the Ministry submitted that the standard of
review ought to be stricter, i.e., that the
grievor ought to be put to the burden of
showing that his or her job was identical to
that of another employee in a higher
classification. This position, however, does
not seem to coincide with the prior
jurisprudence of the Board. In the prior award
of this Chairman dealing with the Brecht case,
supra, it was concluded that the grievors
should succeed on a showing that they were
"performing essentially the same duties" as
those in the more senior classification of
S.o.J. 2. Id. at p.6. In Re .Aikins and
Ministry of Health (1983) G.S.B. #603\81
(Draper), the Board stated, "whatever the term
used by the Board in earlier classification
cases, 'substantially parallel', 'substantially
similar', 'virtually identical' or 'virtually
the same', what is to be determined is whether
or not the work being performed by a grievor is
the same in its distinctive and essential
elements as that being Derformed~ by employees
in the classification sought." Id at p.u.
(Emphasis supplied). Clearly, this test can be
met without showing that the jobs in question
are identical.
In Re Keeling and Liquor Control Board (1990) G.S~B. # 1077\88
(Watters), the Board quotes, with approval, the text described in
McCourt 198\78 (Saltman):
When the Union rests its case on a comparison
with the duties of another job, it needs to
show that the Employer has modified its written
standards. Although every duty between the two
jobs need not be identical (nor could they ever
be completely identical), the duties of the two
jobs must be virtually the same .... "(emphasis
added)
It then goes on to state that with reference to the matter in
front of it, "...it is the judgement of this Board that the core
function of the two (2) jobs in question are neither
substantially similar nor virtually identical''.
In the end, what it comes down to is that the Board has to be
satisfied not about the value of the job, but about its
substance. If it is shown that the essential elements of the job
being compared are the same the usage arguments succeeds; if
they are different it must fail.
In the instant case, the Board is asked to compare the grievor's
job with two others. The first is that of Mr. McElroy. In our
view, the position of the grievor's '.!can't succeed if for no
other reason then that Mr. McElroy is the grievor's supervisor.
He assigns the work and is responsible for his output. The fact
that they share many skills and talk with each other about their
work is a reflection of work habits and a management style. It
does not mean that both ,do the same work. so as .to fit within the
criteria outlined above.
A review of the work of Mr. Foley'shows, again, that he and the
griever utilize many similar skills and, in relation to LHA work
exercise essentially the same functions.~ However, the core
responsibilities of the griever are in relation to L.H.A.s only.
Mr. Foley spends at least 40% of his time on work unrelated to
LHAs and, in particular, related to N.P.H. Thus, rather then
there being substantial similarity between the two jobs there are
significant differences. As was the case with Mr. McElroy, the
criteria required for a successful usage test have not been met.
The grievance is denied
Dated at Nepean, ontario this ?th day of~ecember:_ 1990.
M. Brian Keller, Chairperson
A. Merrit, . · " Member