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HomeMy WebLinkAbout1990-0280.Archer.90-11-22 -:;- '. ONTARIO EMPLO'r'ÉS DE LA COURONNE (~ CROWN EMPLOYEES DEL 'ONTA RIO 1111 GRIEVANCE COMMISSION DE . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNDAS STREET WEST, TORONTO, ONTARIO. M5G ll8· SUITE 2100 TEL£<PHONEITÉLÉPHONE 180. flU£< DUNDAS OUESr. TORONTO, (ONTARIO) M5G U8 - BUREAU 2100 (416) S98-Qô88 280/90 In the Matter of an Arbitration Under The Crown Employees Bargaining Act Before The Grievance settlement Board Between: OPSEU (Archer) Grievor -and- The Crown in Right of Ontario (Ministry of Transportation) Employer ( Keller Vice-Chairperson Before: B. E. Seymour Member D. Daugharty Member I ~or the Grievor: T. Hadwen ¡ Counsel Cavalluzzo, Hayes and Lennon Barristers amd Solicitors For the Employer: A. Rae Counsel Winkler, Filion and Wakely Barristers and solicitors Hearina (8) : September 17, 1990. October 9, 1990. .- - 2 - V ,J DECISION The grievor, Mr. John Archer, is a Pavement Design and Evaluation Officer in the Ministry of Transportation. He is classified as Specification Officer 3 (atypical). He claims that his position is improperly classified and seeks reclassification as TM-17, Engineering Services Officer 4, or Engineering Officer 3. In the alternative, a Berry type award is sought. Mr. Archer's grievance was to be heard at the same time as those of two of his colleagues. It was agreed that Mr. Archerts grievance would be heard and determined and the Board would remain seized to deal with the remaining grievances if necessary. The relevant position specification, which is agreed to be generally accurate reads as follows: Purpose of position (why does thisiposition exist?) To plan and direct field subsurface investigations, request and evaluate laboratory test results, prepare soils profiles and reports, develop alternative pavement structure designs and recommend the most cost-effective solution. To inspect, evaluate and rate highway pavements, develop the most cost-effective rehabilitation strategies and establish an order of priorities for programming purposes. To advise on technical construction and maintenance problems. · . -I :. '~+...j... " . """'1- '. .i._.'''l" ;.' - 3 - ;\ Duties and related tasks (what is employee required to do, how and why? Indicate percentage of time spent on each duty) Under the general supervision of the Soils Supervisor, the Incumbent will: Produce Soils Design Reports and profiles by: - planning, organizing and directing crews, conducting field investigations by specifying location, depth and diameter of boreholes, number and types of samples to be taken, recording ground water conditions, installation of plexometers, original shear strength measurements, etc.: - negotiating and obtaining permission to work on private property; - analyzing field and laboratory results and from a geotechnical perspective, making recommendations on most cost-effective alignment and pavement structure design, being mindful of environmental concerns: - using computer-based systems such as OPAC, to assist in developing cost effective pavement designs; - providing highway designers, environmentalists, construction and maintenance staff with requested geotechnical information. Produce Pavement Condition Reports and recommends priority listings for programming by: - conducting pavement structure condition and performance surveys, analyzing gathered information, developing rehabilitation alternatives and recommending the most cost- effective schemes and preparing rehabilitation programs according to geotechnical priorities. Provides input into the Regional Ma intenance. Programs by: - conducting road needs studies, analyzing gathered information and making recommendations as to the types, locàtions and timing of preventive maintenance treatments necessary to prolong the life of the road system. Performs other duties as required by: - attending pre-contract reviews and special meetings: - providing requested assistance and guidance to Municipal, Construction and outside agencies; - carrying out and completing special ~ · - 4 - ¡ geotechnical studies as assigned; - lecturing at training schools: - as assigned. Skills and knowledge required to perform job at full working level. (Indi,cate mandatory credentials or licences, if applicable) and knowledge is required of glacial geology and geotechnical engineering as applied to pavements. Intimate knowledge essential of the Ministry's -criteria, methodology and techniques for pavement structure design and evaluation. Working knowledge of photo-interpretation as well as the work performed by related highway engineering units in the fields of highway design, construction and maintenance. Good knowledge is necessary of all pertinent Ministry guidelines, standards and specifications. Sound knowledge is required of field investigation and laboratory testing techniques, and applicable administrative and safety regulations. Ability is necessary to access and applicable computer-based systems such as OPAC. Familiarity is needed with the contract preparation process, eligible estimating, and with consultantst agreements. This knowledge is normally ·acquired through graduation from a recognized university, in Civil Engineering or appropriately related science. It can also be acquired through eligible, in the appropriate discipline, from a recognized Community College, and a number of years of practical eligible, or through intensive and extensive on-the-jOb training and successful completion of appropriate internal or external courses. A valid ontario class "G" driver's license is necessary to perform the work. Eligible classified this position in accordance with the Civil Service commission Classification Standards for the following reason: Atypical sales allocation - not to be used for comparison purposes. Subject position evaluated as equivalent to a number of other Ministry positions currently in M.C.P. a level T.H.-16. Subject position considered higher than other Ministry positions classified as Technician 5, eligible in terms of complexity of duties, technical knowledge and skill and in accountability. , l J '/ ~ -." r,,·}.t:~~~ ..';.~ . :~~;; '.~t..,~~ " ' J " - 5 - /,\ , ,l¡;;.,"1':,;..' ,< . ,:~~';;}I~~: ;:,,1 The class standards for Specification Officer 3 and Engineer, Group 4 are: ~.;.!.:. ' . .c'o(,i:..:... CLASS STANDARD: SPECIFICATION OFFICER 3 Characteristics of positions in this class is the provision of technical sùpervision to less senior Specification Officers, in the writing of specifications, monitoring the work of architects and engineers and in research projects whièh may be policy oriented, materials and systems or statistical in nature. They also provide instruction and training for lower ievel officers and check their work. In addition, these employees may produce specifications for the largest and most complex projects, including the hiring and supervision of professional consultants in specialized areas. The very nature of positions qualifying for this class limits the number of positions/incumbents. These employees work with considerable independence. SKILLS AND KNOWLEDGE A good knowledge of architecture, engineering, material costs and general estimating. Good knowledge of' construction law and a sound knowledge of tendering and specifications. Ability to analyze contract systems and documents, prepare and co-ordinate specifications; direct support staff:' communicate and co-operate with professional and technical staff. ENGINEER, GROUP 4 CLASS DEFINITION: This class covers engineering work of a responsible and advanced nature with considerable latitude for independent action and decision, and usually entails the supervision of a number of engineering and technical - 6 - · J employees. The employee may be in charge of all construction or maintenance work carried out in the district, or in charge of a minor engineering subdivision. He may supervise the preparation of plans for installation of services for large public buildings and the organizing of other important engineering projects. He may be the district liaison official between municipals authorities and the provincial Government, approving plans, giving advice and passing expenditures for provincial grants in-aid. The work is usually carried out under direction of a district engineer or the assistant to the Branch head and it is reviewed occasionally for general proqress and conformity to Departmental pOlicy. CHARACTERISTIC DUTIES: As Construction or Maintenance Engineer: directs, assigns and supervises the construction of all highway and road development projects in the district, or all the maintenance, repair, resurfacing and upkeep of provincial highways and road development proj ects in the district. As District Municipal Engineer: co-operates with municipal councils in the planning and assignment of work done under Road Expenditure by-law~ co-operates with duly elected Road Commissioners according to the provisions of the Highway Improvement Act; plans and supervises work on designated Development Roads in the municipal district~ gives advice on and promotes road development in unorganized areas. Under general supervision designs and prepares specifications for large engineering projects such as bridges, dams, additions to public buildings, etc. Supervises and directs traffic and safety programmes. Gives professional supervision to a large drafting office, correlating the production of plans and maps of important engineering projects. Performs other engineering work on a similar level, as assigned. I 1 - 7 - il; QUALIFICATIONS: .' . Ir" q 1', T ~ "l.~ 1- Acceptable professional engineering standing resulting from the Engineering degree and subsequent specialized training in the work of the department. 2. At least six to eight years progressively responsible engineering experienpe preferably in the specialized field. 3. Supervisory and administrative ability. Ability to perform difficult technical research and to make comprehensive recommendations on engineering problems; skill in the design of highways, steel and reinforced concrete structures, and in' preparing complete plans and specifications. Initiative, integrity and good judgment. Th ere is apparently, no class standard promulgated for Engineering Officer 3 even though there are employees in the group and vacant positions are being advertised. Mr. Archer described the duties of his position. Essentially, his main role is to assess, based on information conveyed to him, the soil and sub-soil on Which highways are to be placed to determine and recommend the depth and' nature of the various materials to be put down to get a reasonable life expectancy of the road to be built. He prepares detailed drawings, quantity calculations of materials to be used, does route planning as well as determining how to treat problem areas. If work is being done ~ - 8 - I on an existing road, Mr. Archer researches the past construction history in order to determine how to deal most economically and practically with the situation. From the above, a permanent design report (PDR) is produced. It goes to various other groups. The Planning and Design group receives a copy which is used, along with information provided by others, in producing the drawings and tender documents for the work to be done. A copy is sent to the Construction group who will use it during construction. It allows them to understand the rationale for the recommendations and highlights potential problem areas for them. Head Office receives a copy for review to ensure that the proper engineering principles are follows. As required, changes are made to the PDR and addenda are issued to the receiving persons. For the most part, the specifications used in the POR are found in the Ontario provincial standards Specifications. Mr. Archer also uses standard drawing the vast majority of the time. He testified that he writes a non-standard specification accounting for about 2% of each PDR in 30% of the PDRs he writes. I oJ - 9 - ,I; In additions to the above duty, which is the main'duty he performs, Mr. Archer' performs pavement evaluation. This- essentially consists in riding the 1500 km of paved roads within his territory to determine the quality of ,the ride and do a defect analysis. His assessment is an important part of the planning of the Ministry. Mr. Archer also provides input into the regional maintenance program and provides advice to the maintenance group regarding, for example, patching, problems with drainage, etc. Finally, in terms of his key duties, Mr. Archer deals with the Municipal section of the Ministry by responding to them in dealing with problems within their jurisdictions. ------- Mr. Archer's position is classified as atypical. It is so classified because there is no standard which, in the view of the Ministry, is an accurate reflection of the duties encompassed by the position. The Specification Officer 3, we are told by the Ministry is atypically appropriate because the whole of the job .¡ - 10 - , .. can be most closely captured by it. We do not quarrel with the fact that even in the post-Berry era jobs can be classified as atypical. Indeed, numerous decisions of the Board have maintained that. But, since Berry, the Board has made certain statements about when it will consider an atypical classification appropriate. Essentially, the Board has stated that the essential elements of the job classified can't vary widely from the core features of the archetype of the classification. (See Kuramoto 0046/90; Jaager et a1 696/89; Kelusky et al 1098/86). In the instant case, the core functions of the specification officer class standard is the preparation of architectural and engineering specifications for tendering purposes. The 3 level is distinguished from the lower levels in the supervision and monitoring factor. In addition, those at level 3 produce specifications for larger and more complex factors. Individuals in- these categories have virtually no role to play after the tendering specifications have been drafted. The duties of'Mr. Archer's position bear virtually no l · J - 11 - \, relationship to that care function. ' The care function of his job has to do with analysing and determining how best to deal with soils and sub-soils in the case of highway construction and maintenance. What role he does have in the tendering process regarding highway cons~ruction is incidental and ancillary to the core functions of the position. Frankly, in looking at Mr. Archer1s job duties we are hard-pressed to see how it can be said - to be a "best-fitU within the Specification Officer 3 classification and it is our determination that the position is mis-classified and that the grievance succeeds. The union has proposed various alternative~ as the appropriate remedy. The first is, based on a usage argument, that the job should be classified at the T.M.-17 level. This position is advanced because of the statement in Mr. Archer's jOb specification indicating that his position was, at the time it was classified, equivalent to a number of other Ministry .. positions classified at Mep level T.M.-16. Evidence'was addressed that since that time some of the T.M.-16 positions referred to have been re-classified at the T.H.-17 level. In our view that is too simplistic an approach. We have no knowledge of why that statement is included in the position specification. It · - 12 - .J may be accurate or it may be not. We can not make the finding sought based on an assertion without knowledge of the duties performed and an analysis of the relationship between the functions of the two positions. A usage argument, to succeed, demands that type of analysis. We were unable to perform that analysis in this case and can not accede to the remedy sought. .- The second remedy sought was to reclassify the position at the Engineering services Officer 4 level based on a class standards argument. Mr. Archer, to his credit, was candid in agreeing that most of the class definition didn't apply to him. This remedy is also inappropriate. As a third alternative it was proposed that the job be reclassified at the Engineering Officer 3 level based on a standards argument. Unfortunately, it appears that no standard exists for this position. The union argued that the Board should order the employer to promulgate a class standard as to do otherwise deprives Mr. Archer, who believes his job classification is similar, of the right to conclusively argue that point. I ~t, - 13 - ,! \ '':I We are satisfied that our remedial authority would extend to making the order sought by the union if the order would be necessary to fashion an appropriate and just remedy. However, in our view such an order at this time is premature. We are satisfied that the fourth alternative advanced-a Berry-type order - is the best remedy to cure the prejudice caused to Mr. Archer and we order the employer to create a proper classification for him. If it should be necessary at some point to review our position regarding the Engineering Officer 3 we are prepared to do so. The union asked the Board to order the employer to reclassify the position within 90 days. The employer submitted that. it was impossible to meet the 90 day, limit sought and asked for a one year delay. In support of its request the employer submitted a flow chart outlining the various steps that must be undertaken in the classification process. It points out .that they are numerous, complex and time consuming. It. adds, as a second , argument,' that it has only one officer to deal with Board orders of this type. The second argument advanced by the employer can not be - 14 - :, .' determinative of the issue. While not unsympathetic to the staffing problems of the employer and cognizant of the financial restrictions faced by some Ministeries, we can not conclude that successful grievor's should continue without remedy for those reasons. Classification problems do not suddenly materialize: they tend to endure over long periods of time before they are fully canvassed both internally and externally. It is best for both parties that, once determined, a final resolution take place as soon as practically possible. It is up to the Ministry to address that problem. This Board has not standardized the period of time it allows the employer to reclassify positions. The norm appears to be 90 days but there have been many other approaches taken. One, for example, is to state that the reclassification must be done as within a reasonably expeditious period of time. We favour the approach that provides a time limitation. But how long should it be? The employer says that it is impossible to meet a 90 day limit. It proposes one year but its own document shows a reclassification done in six months - with only one person at the Ministry 'able to do the work. (--~ ,. , t - 15 - ~ \ six months is too long. 90 days may be too short. If the employer requires a longer periOd than 90 days (but less than six months in any case) it is to file a detailed work plan with the Board within 10 days following receipt of this decision outlining the reasons why it needs the additional time. A copy will be sent to the union who will be given a period of five days to comment on the employer's submission. The Board will then, if required, fix the time limit to create the classification. The last issue to be addressed is that of retroactivity. The union argues that the normal 20 day rule should not apply. It proposes a date of March 29, 1989 the date Mr. Archer first raised the issue with management seeking a reclassification. A thorough canvass of the issue of deviating from the 20 day rule can be found in Kelus~ et a1 1098/86. In essence, where the delay can be attributed to the Ministry and not the 'grievor the Board will look to waiving the rule. In the instant case, Mr. Archer addressed management with his desire to have his position reclassified on March 29, 1989. He stated that he understood that certain positions were being ! - 16 - . reviewed, asked that his be included and indicated that he hoped action would be taken that would make a grievance unnecessary. His superior brought the matter up to the Review committee for their considerations and told Mr. Archer . In light of that Mr. Archer . did not file a grievance until he was made aware that his request was not receiving favourable consideration. It would be inappropriate to penalize Mr. Jarvis by applying the 20 day rule. It would be inappropriate because it would be bad labor relations. It is trite that efforts should be made to resolve matters amicably; a grievance should be filed as a last resort. Mr. Jarvis could have escalated the matter but chose to work within the system the employer had in place. Until he was made aware that he would not be reclassified he continued to wait patiently. Once made aware of the employer's decision he did not delay in filing his grievance. We are satisfied that this is precisely the situation where the 20 day rule should be waived. Mr. Jarvis is to be compensated retroactively to March 29, 1989. The parties have agreed that interest is to be paid based on the calculation described by the O.L.R.B. in the Hallowell House decision. I . c:! - 17 - " (', " We remain seized to deal with all issues.arising from the implementation of this decision. Nepean this 22nd day of November 1990. I~L M. Brian Keller, Vice-ChaÌlperson ~/,~/~ _ ~,. ~ Æ.-..........OC,,_·;/ . . 'Ø- Ay K. Seymour ' - ' Member . £)¡t2/~ . D. Daugharty - '. Member