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HomeMy WebLinkAbout1990-1548.Preston.92-12-18 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEYANCE : C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE~I~, TORONTO, ONTARIO. M5G ?Z8 TELEPHONE/TELEPHONE: (4~6) 326 180, RUE DUNDAS OUEST, BUREAU 2TO0, TORONTO (ONTAR~). M50 TZ8 FACSIMILE/T~LEco~E : (~ ~61 326- 1548/90 ZN THE MATTEH OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSBU (preston) Grievor - and - The Crown in Right of Ontario. (Ministry of Natural Resources) ,Employer BEFORE: N. Dissanayake Vice-Chairperson M. Vorster Member R. Scott Member FOR THE R. Blair UNION Counsel Cavaltuzzo, Hayes & Shilton Barristers & Solicitors FOR THE M. Failes ~MPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING May 31, 199i August 8, 13, 1991 DECISIO__N This is a grievance of Mr. Gary preston alleging that his position of Operations Manager of the Lake Nipissing Fisheries Assessment unit at the Ministry's Fish. and Wildlife Branch in the North Bay District is improperly classified as Resource Technician Senior I (RTS I). He seeks reclassification to RTS II, or in the alternative, a direCtion that his position be- properly classified. Attached to this decision are the preamble to the RTS series of class standards and the RTS I and RTS II class standards (Marked "Appendix A") and the~grievor's position specification (Marked "Appendix B"). The primary function of the Lake Nipissing Fisheries Assessment Unit is the collection of data on factors that impact on the fishing industry in Lake Nipissing, such as acid rain and other forms of pollution. In addition, the unit is involved in the management of Lake Nipissing. In performing the latter role, there is on-going public consultation on regulation changes impacting on a number of issues such as habitat improvement, native fishing and work permits on shoreline building projects. The position specification describes the purpose of the grievor's position as "Under the genera], supervision of the 3 Biologist Lake'Nipissing Fisheries Assessment Unit, to plan, organize and supervise the operational and management program of the Lake Nipissing Fisheries Assessment Unit." Under '"Duties and related tasks", the position specification allots 65% of the grievor's time to "plans, organizes and implements the operational and management program" of the unit. The union conceded that "some or even the majority" of the grievor's duties may properly fit within the existing RTS I class standard. In other Words, the various duties he performs by themselves are not claimed to be outside the RTS I class standard. Rather, the dispute is.as to the degree of responsibility borne by the grievor in carrying out those duties. The organizational chart of the Lake Nipissing Fisheries Assessment Unit was filed in evidence. It shows the grievor reporting to the unit biologist, Mr. C. Jorgensen. As already noted, the position specification states that the incumbent of the position works "under the general supervision of the biologist" of the unit. The dispute Centres around the second paragraph of the RTS I class standard which sets out one of the groups of positions that are covered by the particular Class standard, It provides: Also included are positions of employees who assist professional staff e.g. Foresters, Biologists, etc.~ in the management of Forest Units, Lake Units, Private Lands, etc. They participate in the development of management plans,: prepare initial agreements with private land owners, prepare work plans and annual budget estimates, organize and schedule units work and exercise .budget controls. The union does not dispute that the grievor is involved in the management of a lake unit as described in the RTS I class standard. Nor does it dispute that he participates in the types of duties described in the second sentence of the paragraph. However, it is the contention, of the union that when the grievor carries out these duties~, he does not do so by way of assisting a professional staff as envisaged by the RTS I class standard. It is argued that tlhe grievor has full responsibility for what he does as a member of a team. On this basis, it is submitted that the grievor has responsibility for district-wide long range planning which pushes his position outside the limits of the RTS I class standard, and into the RTS II class standard. In support of this position, evidence was led about the , gr~evors role in the production of a status report on Lake Nipissing Fisheries in 1983, (Exhibit 8), the North Bay District Fisheries Management Plan 1987-2000 (Exhibit 9) and the North Bay District Fisheries Management Plan Amendment to include Lake Nipissing, 1991-1997. In addition, evidence was 5 led about the grievor's duties relating to the completion of S.E. 054 forms, which are used for requisitioning regulatory changes which had to be passed by the Federal Government, which has jurisdiction over fisheries. We need not detail the evidence as to the grievor's '~involvement in each of the reports because there is really no disagreement between the parties that the grievor performed those duties. Suffice. it to note that' the grievor attended all of the meetings and public consultations and had significant input and intimate involvement in their development, including the development of the recommendations at the end of the various reports. The real issue is as to the degree of responsibility carried by the grievor. Counsel for the union submits that while "on paper" there was a hierarchy under which the grievor reported to, and was supervised by, a professional biologist Mr. Jorgensen, in reality the grievor did not work under Mr. ~Jorgensen. In other words, he did not' "assist professional staff" as contemplated by the RTS I class standard. He pointed to the grievor's evidence-in-chief that he worked with Mr. Jorgensen as a two person team and that they reviewed each other's reports for accuracy and that neither Mr. Jorgensen nor Mr. R. Wolfe,~the District Fish and Wildlife Supervisor (to'whom Mr. Jorgensen reported) made any substantive changes in any work he had submitted for their review. Mr. Wolfe agreed under cross-exa~ination that there was a cooperative working relationship between himself, Mr. Jorgensen and the grievor and that when ~Lt came to deciding recommendations all three were involved. He further agreed that the grievor did almost all of the ~ompletion of S.E. 054s and that while he reviewed the grievor's work, he was usually on the money". Raving reviewed all of the evidence, we must conclude that the union has not established its position that the grievor's role is not that of assisting a professional staff. The organizational chart and the grievor's position specification indicates that he is supervised by a professional biologist. The grievor agreed that Mr. Jorgensen was his supervisor. The evidence adduced by the union does not in our view establish that this hierarchy which appears on paper is not reflective of. the work relationship that exists in reality. The evidence establishes that while the grievor participated actively in the preparation of exhibit 8, the responsibility for its contents was with the Regional Fisheries Biologist, Mr. M.J. Powell,' who was a professional · j 7 biologist. Likewise, the grievor agreed that while he provided data which led to the recommendations in exhibit 9 and participated in its preparation together with Mr. Wolfe and Mr. Jorgensen, Mr. Jorgensen had the responsibility for its~contents, similarly, exhibit 10 which updated exhibit 9, was the responsibility of Mr. Jorgensen, although the grievor also had input into its preparation along with.Mr. Wolfe. The grievor conceded that he did not author any of those reports. The grievor had the responsibility fo~ ~reparation of the S.E. 054s. However; the grievor conceded that that function involved putting into the form, the recommendations already contained in the reports authored by Mr. Jorgensen. The grievor agreed that what he did on his own was only the technical descriptions. All of the S.E.. 054s prepared by the grievor were reviewed by Mr. Wolfe. The evidence that a .cooperative work relationship prevailed between Mr. Wolfe, Mr. Jorgensen, and the grievor, or that the grievor's work was .usually approved with no substantive changes, is not, in our view, an indication of an absence of supervision or that the grievor had equal responsibility as Mr. Jorgensen or Mr. Wolfe. What the evidence does indicate is that the grievor was a very competent worker who had .the confidence of hi.s superiors. For example, Mr. Wolfe testified' that while he reviewed the' S.E. 8 054s prepared by the grievor, he usually did not have to make any substantive changes because the grievor was usually "on the money". The competence of the grievor meant that Mr. Wolfe was not required to exercise the supervisory authority that he possessed over the grievor. The grievor's competence and the.team approach adopted by management has resulted in a cooperative and informal work relationship between the grievor and his superiors. This work environment may give the impression on the surface that the grievor is an equal possessing the same degree of responsibility. However, the evidence clearly establishes that the grievor's role is to participate and assist in the programs undertaken by the unit .and that the responsibility for the programs lies elsewhere. It has been recognized by this Board that the appropriateness of classification of a position does not depend on the level of competency of the incumbent~ Thus in Re Gerrard, 521/81 (Jolliffe) the Board stated at p. 26: In reaching this conclusion, we are n~D_~t taking into account the grievor's long experience or higb qualifications for the position (he) now holds, it is well understood that what must be classified is the position itself, the duties and responsibilities required, and not the merits of the incumbent. (emphasis in the original.) 9 It must also be recognized that the RTS class series is a highly ranked classification series. The grievor's position itself is also a senior position. Therefore it is not unusual that his'work is not subject to day-to-day supervision as one may expect With a rank and file job. The evidence establishes ·that despite the grievor's belief that he is an equal member of a team with Mr. Jorgensen and Mr. Wolfe, his role indeed is one of·assisting his s'uperiors. He performs duties such as preparation' of annual budget estimates, exercising budget controls, preparation of Work plans and participation of management plans, all of which are recognized by the RT$ I class standard. While he has active participation and input in all of these, he has no direct responsibility for them. In other words he provides technical assistance to those who do hawe the ultimate responsibility. In the circumstances, these duties fit within his existing classification. For all of those reasons, this grievance is hereby dismissed. Dated this 18th day of December, 1992 ~at Hamilton, Ontario N,V. Dissanayake Vice-Cha irperson "I Dissent" (dissent to follow) M. Vorster Member R. Scott Member : RESOURCE_ TECb_-~iCIA.~= S=-N. IOR 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, :he provision of func'.ional advice, policy and s=andards control; other posi:ions are those of supervisors involved in the imp.lementation of varied and complex resource management proqran~nes. The basic requiremenn for both groups is a thorough knowledge of the principles of resource management ~nd technical expertise. The working level" of non-professional dis=rio% staff speciaiist positions is at the Resource Technician, Senior 3 level. However, posi=ions may be. allocated a~ove or below this level, if, in the assessment of senior management, the priority given =o :he %anagement objectives of the service(s) places greater or lesser demands on the ~osition than is t~.~oically found on a province-wide basis. The reasons for such an assessment must be meaning~=utly documented by senior management in each instance. In any such allocation, t_he following, two conditions must"be met: (a) The number of positions at =he Resour.ce Technician, Senior 3 level in any i~dividuai ~rvice must ~e greater than t_he number of.positions above this level. ' (b) The number of positions a__t ~he Resource Tec.hnician, Senior 3 level in any individual service must be greater than the number of Positions below this level. Research .Branch positions allocated to the fi=st and secon~ leve~ in this series will normally be underfi!led by one grade for a period not longer'than one year, to allow for necessary "on the job" =raining in specific research aspects of =he duties involved. ~ositions of Senior Technicians assigned to the Head Office ~r Regional Offices are allo~a=ed to specific levels in t.his class series on a c~para~ive basis with dis=riot positions in rela=ion to such favors as planning, standards control, policy interpretation and implementation, policy rec~endations, etc. Positions will be allocated to a specific level in ~.is class series only when al__l the requirement~ of that level have been ful fillea. DEFINITIONS FOR USE WITH T~IS SERIES Service: Functional field equivalent' of a Minis:.-y D~vis~on, e.g. Forests, Mines, Fish ~nd Wildlife, Parks~ Con'~erva=ion Authorities, Field Services, Lands. Sub-Se--vice: Functional field equivalent of a Minist---f Branch, e.g. Forest Management, Mineral Resources Management, Wildlife Management, Parks Management, Fire Control, Lands Administra=ion. (over) PRF2%MBLE (continued) CLASS CODE: 41109-41115 ~ork · Planning: Planning over a relatively short period where the major factors are provided, e.g.. objectives, specific targets, expenditure allotment, time limitations, areas, etc. Lon_~-ranqe Omerational Planning: Planning involving participation of fi~-ld 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. Research Station_: A formal unit or organization with permanently assigned reg~/lar and/or probationary staff of Research Scientists and non-professional research assistants, conducting, on a year-round basis, scientific work as:-'igned by the Research Branch. CRITERIA FOR RANKING FISH HATCHERIES Type A - year round trout culture. Type B - seasonal pond culture. Type C - ~rough or jar culture. CRITERIA FOR RANKING PARK~, 1. Camper days l. User days 3. Large natural environment 4. Complexity because of special situations. CRITERIA FOR RANKING TREE NURSERIES: Type A - Annual production target of at least t0 million seedlings or an annual production of at least 6 million seedlings plus production of special stocks plus minimum of 10 species produced. Type B - does not meet the above re.cz:irement. CLASS STANDARD; RESOLnRCE TEC~ICTi~N, S~-N!CR ! co ~c~cc cecb~c~ or professio~l speci~szs in dete~g ~ods ~d- Cec~ques, ~ie~nt~ pc~ ~d ccn=r~g s~~s. ~ ~e or more se~ces ~ ~ ~s=ric=-~de basis. PosACion~ of su~sor~ ~o cna year-ro~d ~sis resp~sibi~ for a fo~ ~ of Cr~:ation (f~c~o~l or ~d ~o, ~ ~s con:e~, pre, re ~mrk ~ ~d ~ bud&e: or~ze ~. s~ed~e ~ ~t's work ~ ~rcise buret c~crols, are ~ocaCed CO ~hiS level Positions of e~l~ees ~ c~rge of ~e "~" ~r~ or ~ "B" ~:che~es or seco~-~r~e cf ~e "B" tree :~se~es, are ~ded at ~s level. I~ ~e Research Br~, t~s' c~s~ co~r~ posiciou~ of non-prafessio~l, f,,lly ~ed ~d =~rienced rese~ as~s~=s ~ v~ous .~scip~es of sciatic research ~o.~der ~ec~ of a Res~rch Sciencis=~ ca~ ~c .- assi~ed ~e~-olo~ ~ses of rese~ ~d ~ve f~ res~cnsib~ for ~~ of chined or processed ~ ~d ~e pressmen of repo~ seve~ prcjec~s ~ ~o p~re work p~sI persc~ 2. ~e~ive ~ie~ ~d ~or~ ~dersc~n~i-~ of objectives, ~ techniques app~le co ~e as=i~ed work area; good ~led~e of relent-le~s~cion. - October 1. 1970. ~ STANDARD: RESOURCE TECKN ICIkN . T~S c~ss covers positions of e~l~ees responsible o~ ~ ~stric~-~ide ~sis for tec~cai control ~d ion~ r~e o~=io~l ph~n~ of a su~ser~ce. OR ~o act as ~e se~or' assis~at ~o ~stric~ recital professio~l specia~sts in dete~ng ~th~s and tec~q~es. and interfering po~. con~rolling s~n~rds~ pre. ring long ~nge o~io~l p~ a~ developing new pu~cies f~3r ~ su~ser~ces in ~ne or ~re se~ces on a ~s=rict-~de ~sis. Positions of empl~ees responsible on a ~s=rict-~de basis for field control of T~er revenue so~ces are also included a= =~s level. Positions of ~l~ees ~o are f~l ~i= su~sors are atioca~ed t~s level ~en they are responsible for supervision of staff~ work ~d i~le~ntz~on, budgeting ~d budget control ~d ove~ a~str~ion of ~e ~Jori~ of su~se~ces ~ .11 se~ces present ~c~n a ~ief Bi. sion ~r ~ e~lent ~ or or~za~on, ~ ~ere the n~ber of re~.]~r ~d/or pro~tio~ s~ff per~ent!y assi~ed ~o such ~t is 2~ or less. ~]oca~oa ~o ~s level ~ be ~de o~[7 ~en both c~te~a are f~i~ed. Supe~sors of ~e "~" ~rks ~d ~e "~" ~tcheries are a~ocated to t~s level. ~so ~uded are posi~ons of ~l~ees' ~o ~e second-in~r~e of ~e "A" tree n~series. In the Rese[r~ 8~ch, ~s c~ss co~rs posi=i~ of non-professio~l, f"~7 t~ed a~ e~rienced me. or res~c~ assis~nts ~o, in ad~tion ca~ out ~rious tec~oto~ p~ses of ad~ced research, are req~red to a~se Resea~h Scientists in ~tters of cos~:s, ~npo~r, eq~p~n=, etc., necessa~ for the o~tion of a research s~tion, research vessel or research ~ree n~se~ ~d, ~o ass~ on a 7ear.-ro~d ~sis, a~st~tive, o~=io~l, =~~ ~d/or s~so~ duties necess~ for ~he opera=ion of such a research ~t ~d ~ke c~r~e of such a ~t as 1. ~st~ti~e ~ su~so~ abih~; abih~ to deal effectively ~th other a&encies ~d the pubic; a~? to' car~ out lone-range o~tio~l ph~a~ a~ de~iled wo~ p~n~. ' 2. A ~o~ ~ene~l'~led~e of de~r~nt~ le~shtion, a~nist~tion a~ ~e spe~hzed objectives ~d procedures of its ~rious semites; preferabll co~letion of special t~i~n~ courses in such areas as T~r, Fish ~d Wildlife, Forest ~otection, ~nds or Parks, ~e~nt ~d October  _~ Position Specii:~'~ation & Class Allocation.:SC ~or ~JS~ O~tV ~=e~ac~ons Xana~er, Lake NtpLsain~, F.A.U. ~ 09-~300-96 ~ ;.o,,,eae~: A~s~ssme~t Tach. [. 09-~uu-;v~ Resource Technician St. [ (9 U ) Xa:utal Resources . ~, Nor:hess:em ~rnncn InO ~e~t,nn T~cet~on Geog, ~oc. ~orth Bay D~scrtc: Fish & Wildlife 1 North Bay ,- ~350t I Assessmen~ Btolo~fs: 09-~300-95 Under genera[ supe~t=io~ of ~he ~tologt~, Lake ~tptsstn$ Fisheries Assessment Unit, co ,.'~s ;es smen = 1, 5~%.Plana, organi=ea and implements the operational and. management, program of the Lake Niptssin~ FisheriRs.Aa~e=em~nt Uni: byt .' ~reparlng annual ~get Corms,· ops~aCt~g plan.and participates Ln ~he developmen: - units management, ptans~ ann. an~u~: WOrK plat :or · implementation et prelects including ascertaining manpower and equipment requireme~:s, riming and priorft7 of proJecCs ba~ed on such ~actors as weather,conditions, manpower availabill:7 and funding; - preparing 'schedules and supervising creel surveys, spawning ground.surveys, fish ~agging, index fishing, cotmmercial fish sampling and monitoring ~he native fishery; - preparing schedules for and supervising wa:er quality ~a;a collection and Contaminant' sampling; - codtn~ and summarizing data collection, preparing graphs, preliminary calculacio~s and - recommending new end purchasing replacement equipment necessary to main:sin ~he Unit's marine and CechnicaI ¢apabilttl.eSl - preparing and supervising lisheries habile: rehabilitation and enhancemen: - implementing a~d supervising the wa. lleye eg~ collection program at Wasi Falls for C.F.I.? and District walleye stocking programs; performing on-sire inspections of proposed shoreline development and comp[lance co ensure .fisheries habits: is protected; and controlling expendi:ures and recommending termination or alteration of 2. 1~% Supervises staff - selecting, htrtn~ and supervtsin~ a variety of scaff~ including Group 3 seaaonals, volun~eer~, Sec:ion 25, Level II ~uniot Rangers, Experience, Futures, icc, and :~chntcal work ~o be carried :ratnlng and tnscruc~lng aubordina:e s:aff; -'sleighing work, conduc:ing.perfo~ance appraisals, (con:tnued on back of page) .assisting in difficulties, re¢oTr~ending dis¢%piine, recommending release from emplob~mant rehirin~; performing inspections of ongoing and completed projects to ensure adherence to planned - ensuring workers take precautions lo pro~ec~ health and safety of ~hemselves and o~her~ accordance with O.E.$ok, and W.~.M.I,$. and ensuring workers are advised of 2now~ hazards a ~he required precautions, 10% O~her related duties by~ - meeting with touris[ opera:ors, Came and Fish Clubs Co explain programs and ebjec:ives~ ~er~orming public relations duties by &ns~erin$ public e~q~iries, explaining policy, legislation and programs, atcending met:tings and functions, organizing public and user ~ssistlng Discric: scar{ in implementing ocher'District programs including enforcement, compliance moni~oring, fire and flood emergencie~¥' assis~ing'other Hinistries such as the MiniStrY o~ the Environment in monit=ring effects pollution and siltation; and as assigned. ?ethnics: skills an~ know/edge a: the level usually associated with successful completion and ~r~dua:ion ~rom'a re~a~ed :we-year course of study ~: a Oo~¢~ni~? ~ollege. Thorough k~owledge fisheries managemeo~ and assessment techniques. ,Demo,s:raced experience in the effective o~ ~ wide variety o~ ~i~ies and limne~ogical eq~i. pmen~. ,~ood ~u~e~ent, supervisory a~d ¢o-or~ingtin$ skills ~d ~echniques, gOO~ writ:eh an~ oral co~unication skills, lnc~uding technical report writing and basic statistical skills. Good physical condition co carry out ~ield activities, ~xperlence in :he e~Eeccive use o: a wide variety of fish and wildlife survey a~d ~ana~emen~ equipment. Willingness ~o work i~ t~¢Le~en: '~'ea:her. :,~illlngness co work weekends and irregular hours if required. Good interpersonal ski including ability to deal e~ectively with other agencies and the public. Valid ~0 driver's li Knowledge of :he Occupational ~ealth and Safe,cF Act an~ the regulations Chat apply to ~hat Act. FamiLLari~acion with enforcement principles and techniques with regard re Fisheries Protection Legislation, Carsten Jorgense~ ~kr~ C~rrie, District Manager ?osicion assists pro~essionaL biologist in the management of the La~e Nipiss£n~ ~saess=ent :ni:~ :,~, ~tepates annual ~otk plan an~ operational plans ~ot ~be impleme~tatlon o~ pto~eccs a~d p~tticipatea in ~e~elopment o~ ~ana~emen: ?osition cont:ols expe.n~itu~ea~ e,~, reco~eR~s :e~mination o: alte~ation o~ pto~ects, :~osition cake~ ~hac~e el a variety o~ ~ta~, e,~, hi,es, :~ai~s~ evaluates pec~o~ance,