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Home My WebLink About1990-0559.Ackert.91-08-13 i~ii:~ þ--- - - ...,.. _. - ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STAEET WEST, SUITE 2100, TORONTO, ONTARIO. M5G IZ8 TELEPHONE ITELt:PHONE: (416} 326- 1388 IBO. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1ZB FACSIMILE IT~7tg;0 14161 326- 1396 IR TBB MATTER. OF AN ARBITRATIOR UDder TBB CRO" EKPLOYEES COLLBCTIVB BUGAZRIRG ACT Before THE GRIEVANCE SETTLBKEHT BOARD BETWEEN OPSEU (Ackert) Grievor - aDd - The Crown in Right of Ontario (Ministry of Natural Resources) Bmployer BEFORE: B. Keller Vice-Chairperson E. Seymour Member A. Merritt Member FOR THE R. Healey GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE I. Werker EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors HEARING January 10, 1991 June 12, 1991 June 13, 1991 . . - 2 - The grievor, a Fish and wildlife Technician classified as Resource Technician 3 , employed in the Owen Sound District, alleges his position is improperly classified. He seeks reclassification to Resource 'rechnician, Senior 2, or Resource Technician, Senior 1, or, in the further alternative, a Berry order. It was acknowledged that the position specification reproduced below is largely accurate and generally reflect the grievor's current duties and responsibilities: 1- position title: Fish & wildlife Technician Position Code: 09-8312-23 Position Identifier: 1 Class Sch: 4,7 position Code: 09-8312-23 Class Title and Code: Resource Technician 3 41104 Ministry: Natural Resources Division: Southwestern Region Branch and section: Owen Sound District/ Fish & Wildlife Location: 611 Ninth AVe. E. , Owen Sound Geog. Loc. Code: 25501 No. of places: 1 Immediate Supervisor's Title: Fish & Wildlife Management Officer Supervisor's Position Code: 09-8312-22 2. Purpose of position (why does this position exist?) To plan, implement, co-ordinate and participate in specific operational segments of the District Fish ;-___....... ~ --:i - - 3 - & Wildlife program - provide technical advice, assistance and support in other program areas. 3. Duties and related tasks (what is employee required to do, how and why? Indicate percentage of time spent on each duty) 1. According to annual work planning process, responsible for planning, organizing, i'::.lplementing participating in specific operational aspects of the Fish and Wildlife field programs, liaising with Fish and wildlife Management Officer and District Biologist if clarification of objectives or policy is required by: 80% - locating supplies of fish from private hatcheries for inland water stocking, determining quantities, stocking sites, arranging purchase and delivery dates, participating in stocking, a r ran g-i n 9 assistance as required: - liaising with MNR Fish Culture stations to . arrange delivery dates, stocking sites accor:d i ng to annual stocking plan, participating and arranging assistance; - preparing annual stocking report (District Fish stOCking Program); - processing private pond stocking applications ensuring conformity with District Fisheries Management Plan; - advising private pond owners re pond suitability and appropriate species; - issuing Fish Transfer permits: - maintaining record of ponds inspected, permits issued and fish stocked (private Pond stocking) : - reviewing licence applications, corresponding with licencees, issuing licences, processing annual returns, preparing annual report and advising Enforcement co-ordinator of violations requiring enforcement action (Bai tfish) : · ;. - 4 - - reviewing technical aspects of private fish culture operations and new proposals: - ensuring private fish culture operating standards are being met: - participating in investigations in cases where standards are not met: - carrying out field assessment work to determine merits oi new fish culture proposals; - making recoro~endations (~rivate Aquaculture); - ensuring operation of 5 district fishways during spring/fall fish runs, adjusting for correct water flow or co-ordinating work by other technicians or volunteers; - liaising with Engineering services to ensure operational and emergency needs are known; - preparing annual work plan submissions for fishway operation and maintenance (Fishway Operation) ; - acting on referrals from M. 0 . E . , jnspecting waters to be treated, determining fishery concern in adjacent public waters; - liaising with owner and M.O.E. Pesticides Control Officer and recommending whether or not permit should be issued by M.O.E. (Private Pond Chemical Applications); - setting up 2 district deer check stations liaising with M.T.O. and private sector for one location; - arranging for equipment and material, preparing shift schedules and liaising with District Biologist re methodology: - overseeing and participating 1n data collection process (Deer Harvest Assessment Program): - liaising with private sector flight service to arrange deer yard assessment flights: - preparing flight maps, scheduling flights and crew of 3: - participating as crew member as required (Aerial winter Deer Yard Assessment) ; - installing annually two chillometer units at district sites: .. ;.;. - 5 - - arranging for reading units and taking of snow depths by district MNR staff and Parks Canada staff; - receiving weekly readings, preparing severity index figures and sending to Wildlife Eranch¡ - maintaining district severity index records (Winter Severity Index); - preparing ënnual contract and tender documents ::e processing of submitted deer and moose hides (approx. 1100) ; - liaising with private contractor and audit terms of contract¡ - setting up collection station for hide and jaw submissions; - arranging for materials and equipment, sCheduling staff and overseeing and participating in program, maintaining security of hat inventory, keeping daily submission records, writing final report (Hide and Jaw Program) ¡ - organizing remote fur marking stations (private sector), issuing trappers licences, maintaining harvest data and preparing reports as required, writing annual trapper's letter and marking fur; - organizing annual Fur Harvest; Management and Conservation course liaising with local course instructor and Georgian College staff; - giving and marking course exam and maintaining records of courses given (Fur program) ; - arranging purchase of new equipment and supplies; - maintaining equipment condition and storage facilities (Fish and Wildlife Equipment) ~ - responding to written and verbal enquiries on a wide variety of fish and wildlife subjects including management policy and legislation; - providing advice to landowners regarding resource management on public and private lands (Public Service Needs) ; ~ . - 6 - 2. At request of District Biologist and Fisheries Management Officer, p~ans, organizes and may participate in a wide variety of Fish and Wildlife surveys and projects, supervising subordinate staff (e.g. technicians, Co-op and Experience students) or may work alone depending on scope of project and purchases necessary equipment, compiles da't:.a, writes project report 0Y: 15% - spring deer year assessment and pellet group surveys: - land and stream assessment surveys including electrofishing equipment: - creel census and other user surveys; - environmental surveys: - fish and wildlife population surveys (e.g. woodcock routes, salrnonid smolt surveys, salmonid sampling and tagging at district fishways) ; - assisting CFIP/CWIP program in absence of contract technician, processing applications and invoices, making inspections and evaluations and liaising with private sector proponents; - fish and wildlife habitat enhancement projects; - drafting contractual agreements, prepar1.ng tenders, assisting in opening and evaluating tenders; - administering and auditing performance re contracted projects and surveys (e.g. fish run monitoring and creel census), amending contracts and contractor performance as I required; - organizing specimen collections required for humane trapping study, liaising with local hunters and trappers, collecting specimens and processing payment to donors for Wildlife Research Branch. \ J - ;:-.. - 7 - 3. Other duties as assigned. 5% SKILLS AND KNOWLEDGE required '.. . Good knowledge of resource management including fish and wildlife management techniques. Valid M.O.T. driver's licence. _ . .'¡, '_r : ~, . .' 4. Skills and knowledge required to .perform job a"t full ·working level (Indicate mandatory credentials or licences, if applicable) Technical skills and knowledge. at the level usually associated with successful completion' and graduation from a related two year course of study ·at a Community College. Ability to communicate with the public in a tactful and effective manner, working knowledge of the Occupational Health & Safety Act. I have classified this position in accordance with the civil Service commission Classification Standards for the following reasons: " A. Position of employee performing more complex, demanding and responsible technical duties containing considerable latitude for decision- making, e.g. carrying out specific operation segments of the Fish & Wildlife program. B. Preparing technical reports and plans, i. e. annual stock report, annual baitfish report. An explanation of those duties and responsibilities was given by the grievor and Mr. David Loftus, the District Fisheries and Wildlife Supervisor. Both witnesses were open and candid. Their testimony was, for the most part, complimentary. Such .t: , - 8 - differences as there were, were differences of appreciation and do not materially affect the outcome of the instant case. The essence of the case on behalf of the grievor was contained in a statement submitted to the ioard. It is useful to set it out: The Grievor's Duties Do Not Fit Within the RT 3 Class Standard 5. The Grievor carries out the following duties and responsibilities which do not fit within the Resource Technician 3 class standard: a} Assisting professional specialists to determine methods and techniques: b) Preparing long range operational plans, annual budgets and exercising control over the budgets: c) Supervising subordinate staff in a number of programs, initiating original work plans and scheduling staff: d) Implementing and interpreting policy: and e) Drafting contractual agreements, preparing tenders and administering and auditing contractor performance. 6. The Grievor's position is therefore improperly: classified as Resource Technician 3. The Grievor's Duties Fit Within the RTS 2 Class standard 7. The Grievor carries out the following duties and responsibilities which fit within the Resource Technician, Senior 2 class standard: f\ 1 .. - 9 - a) Assisting professional specialists in determining methods and techniques; b) Implementing and interpreting policy and controlling standards by such means as ensuring conformity with District Fisheries Management Plan, ensuring that private fish culture operating standards are met, and investigating cases where the standards have not been met; c) Preparing long range operationa: plans; d) Supervising subordinate staff who participate in the various programs and preparing and implementing the work plans; e) Preparing budgets and exercising budget control; and f) Independently carrying out duties and exercising considerable latitude for decision making. The evidence shows that the gríevor is involved in the programs as provided in his job specification. He has been doing them for a number of years and it is acknowledged that he performs his J .. work expertly and with an absolute minimum of supervision. He spends slightly more than half his time in the field. When in the office he performs work that can be described as both operptional and administrative. The grievor plans his own work within the parameters of his assigned programs and, at times, within the parameter of instruction given to him by others such as the District ----- .. \ - 10 - Biologist. For the accomplishing of some of his tasks the grievor may have the assistance of casuals and/or other Ministry staff. In those cases the grievor exercises a supervisory role within the limits of the assigned program. In order to accomplish his programs, the grievor must make decisions based on Ministry policy and guidelines as well as applicable statutes and regulations .' He responds to public inquiries as required based on the above. The grievor has been asked to provide technical expertise in or de r that long range plans may be formulated. He has discretionary spending authority In particular situations. He audits the work of contractors and advises them on how to accomplish their work within the terms of their contracts. In order to complete his prQgram the grievor may expend funds within a program-budgetted amount. The nature of the purchase and the timing is left to his discretion. A Form I is required to be filled out for budgetting. The grievor has filled out one , . in the absence of his supervisor. He has provided information needed by his supervisor and management so that the budgetting : .;.. - 11 - process can.be accomplished. Reports are made with regard to the programs. They include a descrlption of how the program ran, participants, costs, methods and recommendations. The programs ~arried out by the grievor are ba 5 i call y the same from year to year. The grievor is not responsible for deciding what programs will run; he carries thß;m out. Some programs are discretionary; others are not. The Resource Technician, Senior Series Preamble, Resource Technician Series Preamble and Resource Technician 3 class standard read as follows: RESOURCE TECHNICIAN, SENIOR SERIES This series covers the positions of Senior Technicians in the field of natural resources management. Some positions are those of specialists concerned with planning, the provision of advice, policy and standards control: other positions are those of supervisors involved 1n the implementation of varied and complex resource management programmes. The basic requirement for both, groups is a thorough knowledge of the principles of resource management and technical expertise. The working level of non-professional district staff specialist positions is at the REsource TeChnician, Senior 3 level. However, positions may be allocated above or below this level, if, in the assessment of senior management, the .r.. '" - 12 - priority given to the management objectives of the ; service(s) places greater or lesser demands on the position that is typically found on a province-wide basis. The reasons for such an assessment must be meaningfully . documented by senior management in each instance. In any such allocation, the following two conditions nust be met: (a) The number of positions at the Resource Technician, Senior 3 level in ~ny individual service must be greater than the number of positions above this level. (b) The number of positions at the Resource Technician, Senior 3 level in any individual service must be greater than the number of positions below this level. Research Branch positions allocated to the first and second level in this series will normally be underfilled by one grade for a period not longer than one year, to allow for necessary lion the job" training in specific research aspects of the duties involved. .. , .. Positions of Senior Technicians assigned to the Head Office or Regional Offices are allocated to specific levels in this class series on a comparative basis with district positions ln relation to such factors as planning, standards control, policy interpretation and implementation, policy recommendations, etc. Positions will be allocated to a specific level in this class series only when all the requirements of that level have been fulfilled. DEFINITIONS FOR USE WITH THIS SERVICE service: Functional field equivalent of a Ministry Division, e.g. Forest, Mines, Fish and Wildlife, Parks, Conservation Authorities, Field Services, Lands. . ,. .. - 13 - Sub-Service: . , Functional field equivalent of a Ministry Branch, e.g. FO,rest Management, Mineral Resources Management, wildlife Management, Parks Management, Fire Control, Lands Administration. Work PlanniI1Q: Planning over a relatively s~ort period where the major factors are provided, e.g. objectives, specific targets, expenditure allotment, time limitations, areas, etc. Long-ranqe Operational Planninq: Planning involving participation of field offices and the Head Office in the setting of Regional and/or District objectives; developing and establishing alternatives for meeting these objectives; analyzing these alternatives; recommending the course to follow; etc. . RESOURCE TECHNICIAN SERIES This series covers the positions of employees engaged in the performance of operational duties in anyone or more of the specialized services, e . g . Forest Protection, Timber, Fish and Wildlife, Lands, Parks, Research, etc. Employees in positions allocated to this series may perform a variety of duties ranging from those of a manual nature requ1r1ng only a relatively elementary understanding of natural resource management to those of a technical nature requiring independent judgement. Entry into this series for candidates who are graduates of an approved Technical School in Resource Management or an approved related discipline is at the Resource Technician 2 level. At this level such employees receive training in practical aspects of theories studied and, as experience is gained, daily supervision · - 14 - is reduced to instructions covering specialized technical problems. Positions involving full time performance of Fish and Wildlife management and/or enforcement duties are restricted to employees who are graduates of an approved Technical School in Resource Management. Research Branch positions allocated to the third level in this series will normally be underfilled by one grade for a period not longer than one year, to allow for the necessary "on the job" training in specific research aspects of the duties involved. Positions will be allocated to a specific level in this class series only when all the requirements of that level have been fulfilled. DEFINITIONS FOR USE WITH THIS SERIES Service: Functional field equivalent of a Ministry Division, e. g. Forests, Mines,' Fish and Wildlife, Parks, Conservation Authorities, Field Services, Lands. RESOURCE TECHNICIAN 3 This class covers positions of employees performing more complex, demanding and responsible technical studies containing considerable latitude for decision making e.g. check scaling; compiling lake development data; training fire crew; operating type "e" parks or type "CII hatcheries; carrying out Fish and Wildlife management and/or enforcement work; gathering, assembling and compiling technical or scientific data, preparing technical reports and/or plans; assessing technical needs of management or scientific projects and submitting technical recommendations, etc. in any assigned area of responsibility. They may supervise and/or train regular employees or take charge of groups of casual employees and, in this l' '- - 15 - context, organize and schedule activities within the general framework of laid down plans or instructions and assume responsibility for the quality and quantity of production and for the work performance of assigned staff. SKI~LS AND KNOWL~GE REOUIRED: ..bility to organize projects and supervise implementation; initiative and abiljty to assimilate new techniques to be applied in a variety of situations = good understanding' of resource management principles. It is clear on the evidence that the grievor's work does not put him within the Resource Technician senior series. One of the threshold requirements, and the one urged on the Board by the union is the second sentence of the first paragraph. On behalf .~ .¡, of the grievor it is argued that he falls within ·those requirements because part of his job is that of a specialist and anothe.r is that of a supervisor. It is acknowledged he falls within neither condition exclusively. It is our view that the grievor does not meet either requirement. He is not a specialist. The grievor has significant Fisheries and Wildlife expertise. But unlike1 for example, biologists in his District þe does not specialize. He performs a wid.e variety of tasks within his area of expertise. The varied nature of the programs he accomplishes are indicative of the knowledge of a generalist "'" ;, - 16 - and not a specialist. The grievor is not a supervisor. He unquestionably may supervise casual staff and even, at times, other Ministry staff but these are in relation to specific nrogram:... and occur only on an I I infrequent basis. The incidence of supervisory responsibility I must be significantly greater than the grievor's to be considered a supervisor within the meaning of the Class Standard. It was also argued that while the duties of the grievor fit substantially with the RT3 Class standard, the five enumerated above do not fit within the standard and are sufficient to result in a Berry order. In 13each, 816/86 (Fisher) , the Board stated that: The mere fact that the duties as contemplated by the Class Standard are in fact performed by the grievor does not in itself mean that the Class Standard is appropriate where the evidence reveals that there are further core duties also performed by the grievor which are not covered by the Class Standard. The question is whether "he could be called upon at any time by (the) employer to perform (the) functions beyond those covered by. the Class Standard". (punninq, 1574/88 (Gorsky» . 1:. _. -~ '. - 17 - Notwithstanding the very able arguments of counsel for the grievor we conclude that the core duties the grieyor is called ~n to perform fit squarely within the RT3 Standard. In particular, and in dealing wi-ch the five points raised, we find that in re 1 ~: t ion to ( a) the grievor does not assist profess1iûnal specialists 1.n determining methods and techniques. He is mandated to perform tasks within his assigned progra.m. The methods and techniques used are, for the most part contained in pol icies, manuals, pamphlets, statute and regulation.: He undoubtedly has to use independent judgement at times but not. 91 . the nature to bring it within ( a) . In relation to (b) , the grievor may plan his own work but he does not prepare long-range operational plans. He is assigned programs and plans his day to day work within those programs. The grievor may.input.to ~t~e .bu~get process in regard to. his assigned program but the evidence es~ablished that the budget was prepared at a higher level. in the .Ministry. The grievor lS empowered to spend money .fors~me program within prescribed limi~s but this does not equate with exercising control over budgets. Control is exercised elsewhere and he acts accordingly. with regard to (c) , the grievor's supervisory responsibilities I -- \ - 18 - are severely limited in terms of authority and frequency. Mr'. Loftus described the role as a leadership one. Any initiation of original work plans and scheduling is rare. Tht q.,=, ievor does not imp 1 ernent pol icy i.\::; sta t{'..ld in (d) . He acts within and as a result of policies but is not responsible for their implementation. He does interpret policy. Finally, the grievor may do some of what is described in (e) but, again, infrequently. It is natural that persons perform duties beyond those specified in the class standard: a qualitative and quantitative analysis, however, is required to show whether they are sufficient to take the duties as a whole out of the Class Standard. Our conclusion ~s that while the grievor may, at times, perform some of the additional duties as proposed, the incidence, frequency and importance in relation to his other duties do not result in their being other core duties. I -:t:...- ---~ ......--..- .. - 19 - The grievance is denied. Dated at Nepean this 13thday of Augast, 1991. ~\) t. M. Brian Keller, Vice-Chair ? /" ~£~--/ ~-~ -- Ed Seymour, Union Member (~~. \Ölll ,\, l.,'( r:{f Al Merritt, Employer Member : I I