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HomeMy WebLinkAbout1991-0456.Donnelly.92-03-24' ONKYO EMPlOYeS DE LA COURONNE CROWN EMPLOYEES DE L'ON~ ~0 GRIEVANCE C~MMISSION DE SETFLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNDAS ~TREET WES~ SUITE 27~, TORONTO, ONTAR~. M5G IZ8 TELEPHONE/TELePhONE: (476) 326- J388 ~0, RUE DUNDAS OUEST, BUREAU 2~00, TORONTO (ONTARIO). MSG 1Z8 FACSiMiLE/TEL~COP~E ; ~4 ~6) 326-~396 456/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE B~RG~INING &CT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Donnelly) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEPORE: W. Kaplan Vice-Chairperson J. Carruthers Member D. Walkinshaw Member FOR THE R. Wells GRIEVOR Counsel Gowling, Strathy ~ Henderson Barristers & Solicitors FOR TH~ P. Pasieka EMPLOYBR Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARIN~ January 31, 1992 r Introduction By a grievance dated April 8, 1991, Mr. Kenneth R. Donnelly, who occupies the position of Foreman Roadside Vegetation Management with the Ministry of Transportation in Port Hope, grieved that he is improperly classified as a Highway General Foreman 1. By way of remedy, Mr. Donnelly sought reclassification in the Maintenance Trades Class standard or a Berry order.. Most of the facts in this case were not in dispute, and by the end of the day, the parties were agreed that there was one issue to be determined: whether the grievor was supervising skilled or semi-skilled staff. In brief, it was the position of the union that this grievance ought to succeed because the grievor was supervising individuals who were working at the "journeyman" level, while his class standard indicated that incumbents supervised "semi-skilled" staff. The employer took the position that the grievor supervised semi-skilled employees who were not required to exercise "trades" skills in the performance of their duties. Moreover, the employer also argued that the grievor's class standard fit, that the Maintenance Class Standard did not fit, and'that the exact issue raised in this case had already, in any event, been decided by the Board in White/FostedKella. r 670/88, 783/88 (Stewart). The Class Standards Before turning to the evidence, it is useful to set out the relevant portion of the grievor's class standard, as well as that of the Maintenance Foreman. HIGHWAY GENERAL FOREMAN 1 CLASS DEFINITION: This class aiso covers positions of foremen who are responsible for carrying out specialized maintenance operations within a District such as zone painting, 3 inspecting, repairing and painting of bridges and landscaping and related arboriculturat work where the general planning of such work is the responsibility of a qualified Arboriculturist 1. As a landscape foreman they supervise semi-skilled staff in carrying out a variety of arboricultural tasks such as planting, pruning and removal of trees and shrubs, weed and brush spraying, sodding, seeding and general landscaping etc., on highway right-of-way and other department property. The Preamble to the Maintenance Trades Classes provides: "Although work in the field is not precluded, most of the positions allocated to these classes involve maintenance work on, in or about a Government institution, building, or field office or other establishment or its associated equipment." The Class Definition for the Maintenance Class Standard states: This class covers positions wherb the employee is a skilled tradesman or qualified Maintenance Mechanic, supervising at least two employees at the Journeyman level in the performance of a wide variety of skilled maintenance tasks in a Government building, institution, field station, or other establishment, including associated equipment and services or in the field (emphasis not ours). Category 1 of the Maintenance Foreman Class Standard provides that it does not include "positions involving unskilled work in support of agricultural, forestry or wildlife programmes." The Evidence The grievor testified on his own behalf, and was the only witness to give evidence in these proceedings. Mr. Donnelly reports to Mr. Ficko, and depending on a number of factors, has three full-time Roadside Vegetatiot~ Management Technicians, and one or two seas°nat help reporting to him. In general, the job involves caring for roadside vegetation along provincial highways. In the spring, the grievor is responsible for planting vegetation and trees, in the summer, the grievor sprays for weeds, plants and cuts grass, and prunes trees. In the fall, the grievor's duties include the removal of dead and damaged trees and other associated tasks. Special projects include activities such as poison ivy control. Spraying for weed and poison ivy control requires a special license. The position specification for the Roadside Vegetation Management Technicians was introduced into evidence, and Under skills and knowledgE; it requires incumbents to possess, among other things, a "Valid Provincial Horticultural Landscape/Greenskeeper Certificate or have successfully passed M.T.O. Landscape Crewman's Examination." Mr. Donnelly testified that one of the Technicians working for him has Passed the M.T.O. Landscape Crewman's Examination, which is a test offered by the Ministry, and is now, with the Ministry's encouragement, enrolled in the Certificate program. Another of the Technicians, who is in his first year of employment, will be required to pass that examination as a condition to passing his probationary period. While the evidence was not entirely clear on this point, it appears as if the third technician is also enrolled in the Certificate Program. For his part, Mr. Donnelly has the Provincial Certificate; he received it under a "grandfather" clause when the trade was first recognized by the Province in the mid-1980s. Mr. Donnelly testified that the Ministry has been actively encouraging the upgrading of skills, and indicated that this emphasis could be clearly seen in a number of documents prepared by the Ministry as part of Maintenance Renewal. Indeed, the posting for a recent opening at Port Hope was introduced into evidence, and states that the Certificate or passage of the M.T.O. test within a twelve-month period of the hiring date is a qualification for the Technician position, although it also notes that "applicants with lesser qualifications will be considered." In Mr. Donnelly's view, these factors indicate a recognition by the Ministry of the increased level of skills required for the Technicians' position and for his own position. In cross-examination, Mr. Donnelly testified that while it is not possible to obtain the Provincial Certificate in one year because of the number of hours required, it is possible to meet the qualifications for passage of the M.T.O. examination in one year. In Mr. Donnelly's view, the M.T.O. standard was not a lesser one; it demonstrated the individual had the abilities to obtain the certificate, but did not have the requisite number of hours. Mr. Donnetly indicated that it was simply the number of h~)urs required that was standing in the way of his staff who had passed the M.T,O. examination from getting their Certificates. Mr, Donnelly was asked whether his job had changed since the Certificate was introduced in the mid~1980s, and he testified that one change was the requirement of a special license for spraying, i The evidence having been completed, the matter proceeded to argument. Araument Union counsel submitted that the only issue in dispute was whether the grievor was supervising persons working at a semi-skilled level or at the journeyman level. In counsel's view, in determining this issue, it did not matter whether or not the Certificate was a precondition to holding the job. What mattered was the skill level being employed, and counsel argued thaLt the evidence indicated that the grievor was in fact supervising persons working at the journeyman level. Counsel pointed to the Class Definition for the Maintenance Foreman Class Standard, and noted that it did not requii'e an incumbent to supervise journeymen; rather what it mandated was that the incumbent supervise individuals at the journeyman level. Turning to the evidence, counsel pointed out that Ministry documents appeared to treat the Certificate and the M.T.O. examination as being equivalent in status by requiring one or the other, and this, in counsel's view, was consistent with the grievor's evidence that the only differentiation between the two was the number of hours required. Counsel sought to distinguish the WhitelFoster/Kelfar award by pointing out that the Board in that case had not ruled on this specific issue, namely the impact on classification where the grievor was exercising a skilled trade and was also supervising others who were Working at the level of a skilled trade. While counsel conceded that the grievor was doing the same job after he received his Certificate as he was before he received it, he argued that one important difference was that the Ministry had now recognized that his job was a skilled trade, in the:same way that it had recognized, and now required, that the persons the grievor supervised work ~t the ~evet of this skilled trade. This requirement could be seen in the 7 documentary materials introduced into evidence requiring Technicians to either possess the Certificate or pass the M.T.O. exam. For a~l of the foregoing reasons, counsel urged the Board to either find that the grievor fell within the Maintenance Trades Class Standard or issue a Berry order. Employer Argument Counsel for the employer agreed that the only issue before the Board was whether the grievor was supervising skilled or semi-skilled staff. Counsel pointed out that while the Certificate was desirable, it was not mandatory, and that even if it was, that Jn itself did not demonstrate that the work in question was skilled. In this regard, counsel emphasized the grievor's evidence that the work has not changed since the introduction of the Certificate in the mid-1980s. Counsel pointed out that the position specification clearly stated that the work of the Technicians was "semi-skilled." Counsel also argued that this very matter had already been decided by the Board in the White/FostedKellar case, which counset submitted was "on ali fours" with the instant grievance. In counsel's view, the evidence, arguments and principles applied in that case were the same as in the instant case. In the absence of any distinguishing factor, counsel aruged that there was no reason for this panel of the Board not to follow this earlier award. For ali of these reasons, counsel urged that the grievance be dismissed. Union Reply in reply, union counsel noted that just because the employer, in a position specification, states that a job is semi-skilled does not necessarily mean that it is so, and he asked the Board not to rely on this characterization in determining the matter before it. 8 Decision Having carefully considered the evidence and arguments of the parties, we have come to the conclusion that this grievance must be dismissed. The grievance in the White/Foster/Kellar case is the same as in the instant one. In White/Foster/Kellar a number of grievors occupying the same position and class standard as the grievor sought reclassification to the Maintenance Class Standard or a Berry order for the same reasons now advanced by the grievor, tn White/Fg~ter/Kellar the grievors argued, among other things, that the Highway General Foreman/Forewoman class standard did not apply because the grievors were supervising skilled workers. And they also argued, as in the instant case, that it did not matter whether the skills were required or not; what mattered was whether they were being used. In determining this issue the Board found! In our view, the fact that horticulture has been designated as a certified trade underlthe Apprenticeship and Tradesman's Qualifications Act is also not determinative. The Act differentiates among trades with respect to the nature of the qualifications for certification and designating some of those trades as computsory and some non-compCsory, giving recognition to the fact that some trades involve greater skill than others. The possession of a certificate is not a requirement for the practice of horticUlture, moreover, it is not a requirement that employees possess the certificate (at 14). We are in agreement with this finding, and reach the same conclusion in the instant case. With respect to the grievor's class standard, we find, based on the evidence we heard, that it accurately describes his duties and responsibilities. While the evidence indicates that the Ministry has placed increasing - 9 emphasis on upgrading the skills of its employees, the fact of the matter is that the job in question has not materially changed as a result of this, and that new skills are not required to perform the positions in question. It is true enough that the province has recognized a Horticulturalist/ Landscaper/Greenskeeper skilled trade, and it is also a fact that the grievor has received a certificate in this trade. However, the job has remained the same, and there is no evidence of any change in the skills actually required for the performance of either the grievor's position or that of the Technicians he supervises. Very simply, there is no evidence that the grievor is supervising employees who are working at the "journeyman" level. Even if there was, we would be far from satisfied that. the Maintenance Foreman Class standard applies, for as indicated in the provisions extracted from the standard reproduced above, that Class Standard would not constitute a very good fit, it being directed to quite different types of work. In contrast, the evidence we heard indicates that the grievor's class standard does fit. The grievor is clearly a good employee rendering valuable service to the Ministry. He is not, however, improperly classified. In that result, the grievance is dismissed. DATED at Ottawa this 24c~, day of u,~rc~,1992. William Kaplan V~zChairpers~ /¢Carruthers ~ / . D. Walkinshaw Member