HomeMy WebLinkAbout1990-1411.Nadavallil.91-11-07
·
- n.."_
~-; " - -
ONTARIO EMPLOV!S DE LA COUflONN£
CROWN EMPLOYEES DEL'ON7ARlO
1111 GRIEVANCE CpMMrSSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
ISO DUND.....S STREET WEST, SUITE 2100, TORONTO, ONTARIO, M5G IZS TELE~ONEfrELÉPHONE: (4151326- r388
180, RUE DUNDAS OUEST, BI.JA1;A'i.J 2100, TORONTO (ONTARIO!, MSG lZS FACSIMJLE'TËLËCOPIE' {4161326·13~
1411/90
IN THE MATTBR OF AN ARBITRATION
Onder
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
I
Before
THE GRIEVANCE SETTLEMENT BOARD
BE'l'WEQ'
OPSEU (Nadavallil)
Grievor
- and - I
¥
The Crown in Right of ontario I
(Ministry of Transportation)
Employer
ÐEPOP: J. Roberts Vice-Chairperson
T. Browes-Bugden Member ,
I
R. Scott Member I
I
\
l.
FOR THE S. Ursel
GRIEVQR Counsel
Cornish Roland
Barristers & SOlicitors
FOR TlIE R. stewart
EMPLOYER counsel
Winkler, Filion , Wakely I
Barristers & SOlicitors
HEARING. January 22, 1991
April 23, 30, 1991
May 7, 1991
~---_.__.
.,çr;' It .
..
AWARD
. .
I. INTRODUCTION
This appears to be another in a series of cases addressing the
question of the propriety of the classification FOR persons I
I
,
performing drafting and related duties in the Civil Service. In
this case, the grievor is a senior Structural Drafter with the
I
Ministry of Transportation, Eastern Region in Kingston, Ontario. I
He is classified at the Drafter 3 level. I
. !
In a grievance filed on June 12, 1990, the grievor claimed
that he ~as improperly classified and requested "reclassifica1:ion
to TM-16 (a management classification) or a classification with
similar salary and retroactive to January 1, 1986." For reasons
which follow, this grievance is allowed in par~, in that the Board
has concluded that the grievor is improperly class~fied; however,
I
we have declined to make the requested retroactive reclassification
1.
and instead remit the matter to the parties under a Berry Order.
II. FACTUAL BACKGROUND
The grievor is employed in the Engineering and Right-af-Way
Office of the Eastern Region of the Ministry. This office has five
sections: Structural, Geo-Technical, Property. Planning and
Design, and Surveys and Plans. The grievor is employed in the
Structural Section.
.
I
...-------....
AWARD
I. INTRODUCTION
This appears to be another in a series of cases addressing the
question of the propriety of the classification FOR persons
performing drafting and related duties in the Civil Service. In
this case, the grievor is a senior Structural Drafter with the
Ministry of Transportation, Eastern Region in Kingston, Ontario.
He is classified at the Drafter 3 level.
In a grievance filed on June 12, 1990, the grievor claimed
that he was improperly classified and requested "reclassification
to TM-16 (a management classification) or a classification with
similar salary and retroactive to January 1, 1986. " For reasons
which follow, this grievance is allowed in part, in that the Board
has concluded that the grievor is improperly classified; however,
we have declined to make the requested retroactive reclassification
and instead remit the matter to the parties under a Berry Order.
II. FACTUAL BACKGROUND
The grievor is employed in the Engineering and Right-of-Way
Office of the Eastern Region of the Ministry. This office has five
sections: Structural, Geo-Technical, Property, Planning and
Design, and Surveys and Plans. The grievor is employed in the
Structural Section.
:
..
2
The grievor's duties and responsibilities were outlined in a
"Performance and Planning" document for the year 1990 as follows:
L Preparing Contract Drawings {40%}
- Prepare accurate and neat contract drawings In
accordance with current guidelines, policies and
procedures. Concrete culverts, non-complex new
structures.
2 . Quantities and Rebar Schedule (Together with duties 3 and
4 : 35% - 40% )
- Accurately compute and document quantities for all
structural materials for each project by the specified
completion date.
- Prepare accurate reinforcing steel schedules,
computerized where specified, for each project by the
specified completion date.
] - Review of work by others (Together with duties 2 and 4 :
35% - 40%)
- Review for accuracy, completeness the contract
draw ings, quantity calculations and reinforc ing schedules
by other drafters and consultants.
4 . Planning, Field Work and Documentation (Together with
duties 2 and 3: 35% - 40%)
- Prepare accurate, complete, planning drawings, compute
dimensions, alignments, grades, and elevations as
required.
3
- Assist, carry out field work as required in compliance
with Safety Guidelines, etc.
- Prepare structural project D4's, Bill of Materials,
where assigned.
5. Supervision (20% - 25% )
- Review all drawings, quantities, Bill of Materials,
etc. prepared in Drafting Section by consultants.
- For conformance with Ministry and Section standards.
- Maintain record of all drafting requests for assignment
to Drafting Section and equally distribute work to
drafting staff.
- Review time sheets and maintain records of work carried
out by the drafters.
- Provide daily direction to Drafting Section Staff
regarding policies and standards, etc. regarding work.
- Provide performance related information to Head,
Structural Section regarding drafting staff and assist in
formulation and review of PPR's for all drafters.
- Implementation of CAD (Computer Assisted Design) .
Provide assistance to Head, Structural Section regarding
training, implementation, etc. of CAD 1n structural
Section.
4
The grievor testified that he has spent almost 20 years with
the Ministry. He became a Drafter 2 in the Structural Section in
1980 and was promoted to the position of Drafter 3 in 1984.
According to the grievor, from 1980 on there was a steady
accretion of duties and responsibilities to his position. Many of
these had to do with an ever-increasing level of computerization.
Apparently, this was a priority with the Senior Structural Engineer
who came into the section in 1980, Mr. Ted Lane. Mr. Lane was the
grievor's direct supervisor.
At that time, there were only about 2 computer programmes with
which the grievor had to be familiar. These were the BR340
programme, which was used to calculate the amount of rebar needed
for a bridge of a particular size and design, and the BR310
programme which could be used to calculate concrete quantities
necessary for bridges, although, the grievor testified, this
calculation is still more accurately performed by hand.
In 1982, however, the grievor began using the BR470 programme,
which was adapted to calculate all elevations, offsets and grades
for new structures and new alignments.
Then came responsibility for knowing how to use the TAPS
(tender analysis and payment system) programme for calculating the
5
quantities of materials required for bridge construction which was
going to be tendered out to private contractors. The idea was to
provide the contractors with an estimate of the quantity of
materials which would be required in order to assist them in
producing realistic tenders for the work.
Then, in 1984, the grievor assumed responsibility for the
OSCLIS (Ontario street clearance and load information system)
programme. The grievor is the custodian of this programme, and as
such is responsible for entering into a data base the clearance
between all new bridges and highways as well as any reductions in
clearances which may have occurred by virtue of re-paving, etc.
The grievor also is custodian of the FOCUS programme, which is
an updating system for a data base containing the highway inventory
of Ontario. Whenever an improvement is made in a highway, the
grievor codes the information into the data base. The grievor
testified that before entering the information into the data base,
he checks it for errors. Apparently this is the final check made
within the region, although a further check is conducted by a
person at head office.
About three years ago, the grievor testified, he took a course
at St. Lawrence Community College in the use of the programme
called Lotus 1,2,3. Since then, he has adapted the spreadsheet
from this programme to office use and uses it for purposes of
6
recording the assignments to the various drafters in the section
and maintaining time records for the section.
The most significant change to the grievor's job, however,
came about in March, 1990 when he started using CAD (computer
assisted design) for purposes of performing his drafting duties.
Apparently, the grievor started out using a programme called Auto
Cad and then, in July, 1990, he was trained to use a more advanced
computerized drafting work station called Auto Tool. As a result,
it has been 8 to 9 months since the grievor used any manual skill
in the manipulation of drafting tools to produce the engineering
design drawings for which he is responsible. Because of the
radical change occasioned by the introduction of computerization,
the grievor now spends 35% of his time at a computer work station,
performing drafting duties.
The grievor also testified that there were other accretions to
his duties over the last decade. This evidence had primarily to do
with the reliance which the Senior Structural Engineer placed upon
him to provide helpful feedback to designers derived from (1) his
lengthy experience in dealing with the construction of bridges, and
(2) certain design responsibilities which the grievor executed when
it came to the building of temporary bridges known as Bailey
Bridges. With respect to the latter, the grievor stated that once
he was advised about the length of the span, he would execute the
complete design himself by looking in the manual for the component
·
7
part s , preparing a bill of materials, calculating the total weight
of the bridge, and checking the drawings produced by the Drafter
2's working under his leadership.
The grievor also stated that he carried similar design
responsibility when it came to the design of barrier walls or
approach slabs. He agreed on cross-examination, however, that the
only thing that varied in design from one such structure to another
was its width and that in the end, it was up to a designer or
engineer to accept or reject the design the grievor suggested.
The sole witness for the Ministry was Mr. Ted Lane. He
testified that for the past five years he has been the head of the
Regional Structural Section for the Eastern Region. Prior to that,
he stated, he was the Senior Structural Engineer in the Structural
Section.
Mr. Lane agreed that computers had created an impact upon the
Structural Division. He said that computerization had largely been
responsible for an increase in productivity of the section. He
stressed, however, that while computer-assisted design changed how
drafting duties were performed, the end product was identical to
the product which was produced by hand. He stated that 60 to 80%
of all drawing in the section was now performed using CAD. He
added that it is common now for drafters from community colleges to
have solely CAD skills and not manual drafting skills. The
8
grievor, he said, was required to have both skills -- for now.
As to the other claims of the grievor, Mr. Lane explained that
the grievor was not involved in design work per se, but in
detailing conceptual designs from a designer-engineer.
According to Mr. Lane, the engineer's portion of design work
involved application of structural engineering principles and the
drafter's job consisted of detailing those concepts into a drawing.
Using as an example the replacement of a barrier wall, Mr. Lane
stated that the engineer determines the dimensions, thickness and
spacing of reinforcing steel while the drafter would determine the
length, number of panels of wall and number of bars of steel
required.
Mr. Lane agreed that as the drafter details the concepts given
to him or her by the designer, there is a fair amount of inter-
action between the two. He stated that things that did not fit as
the designer anticipated they would and other such functional
details would be brought to the designer's attention by the drafter
and the latter would then make the necessary changes. Everything,
Mr. Lanes stressed, was subject to the approval of the designer.
As to the grievor's claim regarding Bailey Bridges, Mr. Lane
agreed that the grievor was knowledgeable regarding such bridges
and had taught other drafters the detail drawings for Baily
9
Bridges.
III. THE PRINCIPAL SUBMISSIONS OF COUNSEL
In argument, counsel for the grievor submitted that the
evidence clearly established that the grievor was no longer in the
class standard for the Drafter series. The Drafter series, it was
submitted, was rapidly becoming obsolete because it emphasized the
use of manual drafting skills and did not even mention the skills
essential to drafting using computer-assisted design.
Counsel for the Ministry, on the other hand, claimed that
despite the change in required skills since the class standard for
the drafter series was established in 1962, the class standard
remained a remarkably good fit. It remained so, counsel stressed,
because the end product, i.e., the drawing, remained precisely the
same regardless of whether it was produced by computer or by hand.
IV. CONSIDERATION OF THE SUBMISSIONS
We think that the ACCRETUIB of duties to the grievor's
position primarily as a result of the computerization of the
drafting process operated to remove the grievor's position from the
class standard for the Drafter series. This case is virtually
indistinguishable in its essential repects from Re Eldon and
Ministry of Transportation ( 1989 ) , G.S.B. #1324/88 (Samuels) , in
10
which the Board concluded that Mr. Eldon, who was classified as a
Drafter 2, no longer fit within the class standard for the Drafter
series by reason of the accretion to his position of computerized
drafting skills.
In that case, the Board said:
Mr. Eldon is an old hand in the office. He's been there
since 1964. The computation and drawing used to be done with
pen and paper. Later hand calculators assisted in the
calculations. Today almost all his work is done on the
computer. There are programs to do the calculations necessary
to check the field notes, and to prepare the raw data for
presentation on plans. There are graphics programs to prepare
the material for the drawings, which are done on a plotter.
... The Drafter Series commences with a preamblè (appended to
this award as Appendix 1), whose first words are "In general,
employee work assignments in this Series require the exercise
of manual skill in the manipulation of drafting tools, and the
utilization of knowledge of technical procedures, engineering
practices and mathematics in order to complete clear accurate
plans". . . . The grievor has not only learned new skills land
acquired valuable experience, the Ministry employs these
skills and this experience. His job now requires that he
exercise these skills and call on this experience. In our
view, it can no longer be said that the grievor simply
exercises "manual skill in the manipulation of drafting
tools". Therefore, his job is not properly classified in the
Drafter Series. Id. at pp. 2-7.
Because almost all of Mr. Eldon1s work was done on the computer, it
was concluded that his position no longer fit within the Drafter
Series which required in its preamble "the exercise of manual skill
in the manipulation of drafting tools."
In the present case, virtually all but the grievor1s group
leadership and field responsibilities are performed on a computer.
11
He spends 35% of time in the performance of computerized drafting
duties. As the evidence indicated, he also uses the computer to
perform a variety of other functions, including the performance of
calculations and maintaining essential records. While, as Mr. Lane
testified, the Ministry expects the grievor to maintain for the
time being his manual drafting skills, there is no doubt that since
the introduction of CAD, Auto CAD and Auto Tool in 1990 the
grievor's computer skills have taken the forefront.
Counsel for the Ministry referred to two other cases, Re Chau
and Ministry of Transportation (1990) G.S.B. #172/89 (Watters);
and Re O'Kapiec and Ministry of Transportation ( 1989 ) , G.S.B.
198/89 ( Gorsky) , for the proposition that the accretion to a
position of computer skills without any change in the output from
that position was insufficient to warrant reclassification. We do
not think that these cases go that far.
In Chau, the grievors only spent approximately 12% of their
time working with computers and that there was no evidence that
they were performing their drafter functions in a computerized
manner. See ide at pp. 2,4. In O'Kapiec, the grievor was already
in a classification clearly requiring the use of computer
technology. He was merely seeking reclassification because his
computer-related duties had increased from 40% of his job in 1980
to 60% of his job in 1989. See ide at p. 19. The Board
-
essentially concluded that the greater use of the computer did not
12
justify reclassification.
V. REMEDY
Having concluding that the grievor is improperly classified in
the drafter series, we turn to the question of remedy.
Counsel for the grievor submitted that we ought to reclassify
the grievor into one of several alternative higher-rated
classifications, and not just the management classification claimed
in his grievance. Evidence was led from a witness who was
classified as a Designer 1 in an attempt to demonstrate that the
grievor, who was performing duties at a higher level, should, in a
twist upon the classical "class usage" argument therefore be
entitled to be slotted in at the level of Designer 2.
This evidence was led over the vigorous objection of counsel
for the Ministry, who submitted that there was no precedent for
twisting the class usage argument beyond its accepted bounds of
ensuring that like positions be treated in a like manner.
We agree. The class usage argument should be confined to its
usual realm. There seems to be no justification for allowing it to
be used to "boot strap" a claim for a higher classification than
that of the witness. Accordingly, we decline to give weight to the
testimony of Mr. Hiscock in formulating our decision in this award.
·
13
This means that we have no alternative here but to issue a
Berry order remitting the matter to the parties for the
determination of a proper classification for the grievor without
undue delay.
Finally, we must say that we reject the submissions of counsel
for the grievor on retroactivity. There are two reasons for this.
First, on the grievor's own evidence and that of Mr. Lane, the
accretion to the grievor's duties which tilted the scales in favour
of removing his position from the Drafter Series was comprised of
the computerized drafting skills in March to July, 1990. The
grievance was filed in June of 1990. In light of this, there would
appear to be little in the way of support for an award of
retroactivity back to 1986.
Secondly, we must follow the usual rule of the Board in cases
where the grievor seeks retroactivity beyond the usual limit
mandated by the filing date of his or her grievance. That is, that
"barring the existence of circumstances which would make it
inequitable for the Ministry to rely upon it, retroactivity will be
limited to the period of time within which it was permissible for
the grievor to file his grievance. " Re Smith and Ministry of
Community and Social Services (1985), G.S.B. #2237/81 at p. 6
( Roberts) . See also Re Lowman and Ministry of Transportation and
Communications (1986), G.S.B. #13/82, etc. (Sal tman) .
14
The ma.'tter i. reølitted to the parties in thia poature. we
will retain jurisdiction pending i.mplelllentation of the term. of our
award.
DATED at London, Ontario, this 7th of November. 1991.
R.
2BJdF-
',,_ ,'J'~, .,.,.'v
R. Scott, ~ployer Member