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HomeMy WebLinkAbout1990-1787.Johnson&Wales.92-09-16 ON TA RIO EMPLOYES DE LA COURONNE CROWN EMPL 0 YEE$ DE L '0 N TA RiO GRIEVANCE CQMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 780 DUNDAS STREET WEST, SUiTE ZtO0, TORONTO, ONTARIO. MSG iZ8 TELEPHOtJEiTELEPHOt¢E [4;5) 325 180I RUE DUNDAS OUEST, BUREAU 2tO0, TORONTO (ONTARIOJ. MSG IZ8 F~CSfMiLE ~LECOP~E . f4 ~6~ 2£~-:396 1787/90, 1788/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ' Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Johnson/Wales) Grlevor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE: N. Dissanayake Vice-Chairperson M. Lyons Member I. Cowan Member FOR THE R. Healey UNION Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D. Jarvis ' EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING March 10, 1991 July 10, 11, 1991 2 DECISION These are two individual grievances filed by Mr. Dave Johnson and Mr. Grahame Wales. Both grievors are employed by the Ministry of Natural Resources in its Minden Office in the Region of Algonquin, as Lands and. Parks Technicians. Their positions are classified as Resource Technician 3 (RT 3). They claim that this classification is.. improper and seek a "Berry Order" directing that their positions be properly classified. These grievances were argued solely on the basis of the class standards. The employer raised a preliminary objection that Mr. Wales' grievance was inarbitrable. This motion relates to a previous classification grievance dated November 16, 1987 filed by Mr. Wales claiming that his position of Lands and Parks Technician was improperly classified as RT 3. By majority decision dated November 19, 1990, tl%e Board dismissed his grievance. See, Re Wales, 2417/87 (Dissanayake). In light of that history, the parties agreed that in order to avoid the application of the doctrine 0f ~es judicata, the Board in this proceeding must be satisfied that the facts on the basis of which this grievance was filed were not the same as in the prior grievance. Re Anderson et al, 346/89 (Keller). ' 3 The uncontradicted evidence of Mr. Wales is that, while the he~r~ng of the previous grievance was underway, his supervisor at the time, Mr. Greg Vaughan, advised him that his job was going to change, that his planning input and review duties will be significantly reduced and distributed among others, and that there will be a corresponding increase in his lands administration duties. In June 1989, Mr. Wales was notified by a letter from Mr. Vaughan of the impending changes, and a new position specification was created to re~lect those changes. Mr. Wales testified that after June 1989 his job in fact changed. According to him prior to that he spent approximately 80 percent of his time performing planning input and review functions and only about 10% on lands administration. After June 1989 his planning input and review duties went down to 25-30 percent, while the lands administration duties increased to about 60 percent. On the basis of this Change, counsel for the union submits that since the filing of his last grievance, the focus and content of Mr. Wales.' job had significantly changed and that in the circumstances res judicata does not apply. Mr. Mike Belcher, the grievors' supervisor at the time of the filing of the present grievances, testified that that there was no such change in Mr.'Wales' duties. However, in giving that testimony, Mr. Belcher relied -on time sheets filled out by Mr. Wales, and to a lesser extent on his own 4 general impressions and observations. It is clear that there was no reliable factual basis for Mr. Belcher's general observations. It was even clearer that the 'time sheets relied on by Mr. Belcher were not (for reasons not relevant here) an accurate or reliable record of what duties Mr. Wales actually performed. Given the uncontradicted evidence of Mr. Wales that Mr. Vaughan notified him specifically that there will be a shift in the emphasis of his job from planning input and review to lands administration, the letter' from Mr. Vaughan confirming the impending changes, and the~ issuance of a new position specification, we accept Mr. Wales testimony as to the change that actually occurred. In light of that, we also agree with union counsel that the factual basis of this grievance is not the same as that of Mr. Wales' 1987 grievance. Accordingly res judicata does not apply to bar this grievance. While that disposes of the employer's preliminary objection, it remains to be determined %~ether Mr. Wales' duties as they existed at the time of the present grievance rendered the RT 3 classification improper for his position. While there were some minor differences between the duties performed by Mr. Wales and Mr%~ Johnson, their jobs were substantially similar. Therefore, counsel argued the two grievances together without drawing any factual distinctions. 5 We are also of the view that the grievors' duties were sufficiently similar that it is appropriate for the Board to deal wit~ their grievances together. Whatever result obtains must apply to both grievances. The evidence indicates that the grievors' duties fell into three categories. (a) lands administration (b) planning input and review and (c) other duties. The "other duties" of the grievors formed a very minor part of their job. As we have already found, at the time of these grievances, they spent the majority of their time on lands administration. However that by itself does not assist in the determination of the grievance, 'unless it is established that there was something about those- duties which took the grievor's positions outsid~ the RT 3 classification. The RT 3 class standard, together with the preamble to that cla~s series in attached to this decision marked "Appendix A". The evidence is that as part of their lands ~dministration ~uties the grievors were responsible for the preparation of responses to "proposals" by the publ'ic or municipalities. In their responses the grieuors informed the proponents whether their proposalswere in compliance with the Public Lands Act and some 9 other-pieces of legislation that directly or indirectly regulate and protect the interests of crown land. Similarly, when land use permits were sought by 6 the public, the grievors were required to decide whether a permit was required for the proposed work, whether one should be issued, and if so, what conditions and disclaimers must be attached to the permit. In making these decisions, the grievor's were required to consider a number of relevant statutes. Counsel for the union points out that in preparing responses to proposals and issuing work permits the grievors were required to be accurate in their assessment and interpretation of applicable legisXation. He submits that the role of the grievor's was similar to that of a lawyer giving legal opinions by interpreting and applying legislation to a specific set of facts. The thrust of his argument is that this is intellectual type of work not contemplated by the RT 3 class standard, which focuses on technical duties. Counsel argues that it contemplates only positions~ that involve the performance of technical duties "in the field". In contrast, the grievor's duties relating to proposals and work permits were "para-legal and intellectual" as opposed to "technical". We do not agree with that cha'racterization of the grievors' duties. With regard to responses as well as issuance of work permits, the evidence indicates that the employer maintains extensive manuals containing practice, procedure and guidelines. There is also a precedent book. 7 The evidence'indicates that the great majority of situations can be, and are, dealt with by reference to this material, which includes the ministry's interpretation of the various legislative provisions that may come into play. In fact, Mr. Johnson testified that in most cases he did not have to even refer to that material, because through experience he was aware of the information required. While on occasion, an unusual situation may arise that can not be resolved with the aid of the manuals and precedent books, in these cases the grievors were not required to resolve the problem on thei~ own. They could seek the assistance of their supervisors or seek advice from the Ministry's legal department. Where the grievors saw a c~nflict between two statutes for example, they were not required to resolve that situation. Likewise, while conditions on work permits were put in by the grievors, the evidence'is that this was done on the advice of staff from other branches (ego Fish and Wildlife) who usually did a site inspection to decide what conditions were required to protect the branch's interest. Union counsel's argument that the class standard only envisages field work is not sustainable. While counsel points to the example provided in the RT'3 class standard of "check scaling" as a "field" duty, that is only one example. Another example set out is "preparing technical reports and/or plans". 8 This clearly indicates that the standard is not restricted to field jobs. Therefore it takes us back to the issue of whether the duties in question may properly be described as "technical" duties within the meaning of the RT 3 class standard. In Re Wales (supra), the Board was called upon to decide whether the grievor's planning input and review duties took his position outside the RT 3 class standard. The grievor had ~he responsibility to review planning proposals such as official plans, zoning by-laws, development proposals, sub- division plans, severances etc. .and submit input so as to ."minimize any impact on natural resources and to encourage municipal participation in the management of natural resources." (p.4). In performing these duties, compliance with legislation such as the Planning .Act was a major consideration. However, the evidence was 'that in performing the planning input and review duties the grievor had access to a set of binders which set out guidelines for compliance. If the grievor was able to respond 'on the basis of his acquired expertise and the information in the material he did so. However if he had any problems he sought the advice of other specialists and professionals. (p.5). In those circumstances the Board did not find that those duties fell outside the RT 3 class standard. We see no reason 9 why the grievors' present duties should lead to a different result. The mere fact that the grievor's duties involve a consideration of legislation does not in our view turn the grievors' role from one of a technical expert to that of a para-legal. It is a fact of life that practically every area of human activity is regulated to a greater or lesser degree by the law of the land. Thus for example, a professional engineer in charge of a project, in addition to-providing his engineering skills, may have to consider and provide advice on a number of laws such as zoning laws, safety laws and even labour laws that may govern the activity on the project. An accountant may have to consider and provide advice on tax laws,'partnership laws and trust laws. However that does not convert their jobs into legal or para-legal jobs. They still remain experts in their own professions. The grievors have no legal or para-legal training. Their position specification describes the "skill and knowledge required" as "Progressively responsible experience as a resource technician° Technical skills and knowledge at the level associated with the successful completion of and graduation from a related two year course of study at a community college." The RT 3 class standard requires a "good understanding of resource management principles". The position specification goes on to also require a "working knowledge o~' relevant legislation and regulation". There is no reference in the RT 3 class standard to legislation. However, in our view, that does not detract 10 from the fact that the grievors' role is that of a technical expert. The fact that the practice of that expertise requires the consideration of relevant legislation does not change the nature of their duties. Counsel for the union also argued that the grievors' positions do not fit within the RT 3 class standard because they do not supervise or train other employees, and because they do not perform their work under the '~general framework of laid down plans or instruction". The portion of the class standard relied on by counsel reads: They may supervise and/or train regular emDloyees or take charge of groups of casual emDloyees and, .in this 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. It is clear from this language, i.e. "may supervise", that suDervision is not a pre-condition for inclusion in this class standard. It is equally clear that the balance of the paragraph including the reference to "within the general framework of laid down plans or instruction relates back to those instances where RT 3s in fact suDervise or train other employees. There is no requirement in the c~'[ass standard that incumbents must generally perform their work under laid down plans or instruction. On the contrary, it is said to cover 11 positions of employees 'performing "... duties containing considerable latitude for decision making." For the foregoing reasons, we cannot be satisfied on the basis of the evidence that the positions held by Mr. Johnson and Mr. Wales are improperly classified as RT 3. Accordingly these grievances are hereby dismissed. · Dated this 16th day of Sep£emberl992 at Hamilton, Ontario. N. Dissanayake Vice-Chairperson "I Dissent" (dissent to follow) M. Lyons Member Member CLASS STANDARD: ~pPF. NpIX A PREAMBLE RESOURCE TECHNICIAN SERIES This 8eries covers the positions of employees engaged in the performance of operational duties in any one or more of the specialized ~erv~ces, e.g. Forest Protection, Timber, Fish and Wildlife, Lands, Parks, Research, etc. Employees in positions allocate~ to this series may perform variety of duties ranging from those of a manual nature Tequ. iring only a relatively elementary understanding of natural resource management to those of a technical nature requirin, g independent Judgement. En_try int~o this series for candidates who are graudates of an approved Technical School in Resource Management or an approved related discipline is at the Resource Technician 2level. At this level such employees receive training in practical aspects of theories studied and, as experience is gaaned, daily supervision 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 ~he third level in this series will normally be underfilled by one'gra.~e for a period not longer than one year, to allow for the necessary 'on the job' training in speczfic 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 FUnctional field equivalent of a Minist~.~ Division, e.g. Forests, Min'es, Fish and Wildlife, Parks, Conservation Authorities, Fiel~ Services, Lands. CR/TER/A FOR RANKING FISH HATCHERIES Type A - year round trout culture. Type B - seasonal pond culture. T~.pe C - trough or jar culture. CRITERIA FOR RANKING PARKS 1. Camper days 2. User Days 3. Large natural envir¢:~unent 4. Complexity because of special situations. Revised May i, 1973 TiLtS ClaSS covers positions of employees ~rfornLtr~ more for d~ie~on ~ e.g. ch~k sc~ comp~ l~e de.slovene ~~ f~re cr~; o~raC~ ~ sca ~ or ~ tCe ~her~es; ~ ~y su~se ~/or cron re~ ~pl~ees or c~e c~e of ~ou~ of cas~ ~loyees ~, ~ c~s conch, orA~ze.~ scheme ~ ass~e rea~b~ for ~he q~'~ q~~ of ~C~on for the ~rk ~rfo~ce of aest~ Abi.Ltry ~o organize projects and supervise tmplemen~ar, ion; irdtia~ive strual~ions; ~ood ~n~erstandin~ of resource man~eenc principles. October 1, 1970. DISSENT 1787, 1788/90 JOHNSON/WALES (OPSEU & MNR) I have read the decision 'of the majority and With respect, must dissent. I was a member of the Board in Wales, GSB 2417/87 {Dissaniyake) and I dissented in that decision as well. I felt at that time that Mr. Wales was improperly classified as an RT 3 and should have been reclassified as an RTS 1. Therefore it should come as no surprise that I feel the grievors in this current case are improperly classified. However, there are differences between this case and Mr. Wales previous case. The duties of the grievors are not the same as Mr. Wales previous duties. Inter alia, Counsel for the Union argued that the grievors respond almost entirely to the legal rather than the'technical aspects of proposals. I find this to be the case. I agree with the majority when they point out that people such as engineers and accountants frequently have to consider and provide advice on a number of laws and that this fact alone does not convert their jobs into legal or para-legal jobs. Another factor that must be considered is the proportion of time that is spent on legal as opposed'to technical aspects. In this case, although the grievors require technical knowledge to perform their jobs, they do respond almost entirely to the legal rather than the technical aspects of proposals. This constitutes a significant variation from the core duties described in the class standards. Accordingly, I would' have awarded a Berry order. at Toronto this 8th day of September 1992