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HomeMy WebLinkAbout1991-2091.Bent & Mahler.92-11-04 ONTARIO EMPLOYES DE LA ¢OURONNE ~,-' CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT R~GLEMENT BOARD DES GRIEFS 180, ~UE DUNOAS OUEST, BU~EAU Zr~, TORO~O [ONTARIO}. MSG 1Z8 FACS~LE/T~L~COPIE : (416) 326-~3~ 2091/91 I~ THE ~TTER OF ~ ~IT~TION Under THE CRO~ EMP~YEES COL~CTI~ B~AININ~ ACT Before ~E ~RIEV~CE SETTLE~ BE~EN OPSEU (Ben~/~ahler) ~evo~ The Cro~n in ~i~ht of Ontario (~inist~ of Transportation) . ~ployer BEFORE: H. Waisglass Vice-Chairperson E. Seymour Member M. O'Toole Member FOR THE J. Monger UNION Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE P. Pasieka EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HE~RING May 20, 1992 July 23, 24, 1992 September 30, 1992 DECISION , Delroye Bent and Ralph Mohler, the grievors, ore employed by the Ministry of Transportation in the Central Region, at the' Kipling Office in Toronto, os Foremen, Roadside Vegetation Management, and are classified as Highway General Foremen. The grievors claim to be improperly classified. The grievors submit that their duties and responsibilities ore substantially the same as those performed by Stayer ~ayne Dodgson, who is. employed in the Northern Region at Huntsville, and who {s classified as ArboricuIturist 1. They claim also that the position specifications for their jobs ore inaccurate in that they do not fully set out their duties and responsibilities. They claim, therefore, reclassification to Arbortcutturist 1, retroactive to 20 days prior to September 21, 1991, which ts the dote the grievances were filed. Counsel for the Employer presented a preliminary objection, claiming that the issues involved in these classification grtevonces have already been decided, and that th~s panel of the Board should be guided by the observations of Chairman Owen Shime tn Blake et al [1267/87 et ol.] Counsel claimed that the issues have been decided by three earlier panels ruling on the grievances of prior incumbents of the same position; and that in each of the three prior cases the Board had determined that the position ts property classified. The first of these three cases, heard tn 1983, e~s Foster [411/82; Gorsky], where Foster was in the same classiflcatlon [Highway General Foreman 1], the same position [Landscape Foreman] and the same location [Kipling Ave., Toronto] as the grievors. He grieved he was improperly classified and requested reclassification to Arboriculturist 1. The Board found ~the Grievor has not been improperly classified". In the second case, ~h~te/ Foster/ Kellor [67~/88, 783/88; Stewart], the Board faced ogotno class standord issue. Two of the grievors, ~hite and Foster, were tn the same classifications, tn the same positions, tn the same tocottons os the present grievors. [Foster wos the grievor also in the first .'___~// case, cited above,] KeIlar, also a Landscape Foreman, in the same classification, was in o different location, employed tn the Ministry's Bancroft office. The three grievors claimed they were wrongly classified as Highway General Foreman/woman, and that they were more appropriately classified os Nointenonce Foreman/woman. Alternatively, they asked for a ~Berry order" to establish o new classification in order to correct their wrong classifications. The Board found that the grievors were not improperly classified. In the third case, Donnetlv [456/91; Kaplan], we have a similar class standard issue. The grievor was in o similar position, Foreman Roadside Vegetation Management, but at a different location, at Port Hope. He grieved he is improperly classified as Highway General Foreman l, seeking "reclassification in the Maintenance Trade Class standard or o Berry order", much like the grievors in the second case above. The Bo~rd decided his position is not improperly classified. Counsel for the Employee claimed that there have been no changes in.the duties and responsibilities of the positions now occupied by the grievors since the times when the Board hod decided on the classification grievances of the previous incumbents of the very same positions, particularly White and Foster, who were also in the same locations. [We heard no evidence, however, to support or deny the claim that the duties and responsibilities hove not changed significantly from the time of the hearings on the cases cited above, that they remain the essenttolIy the some for the grievors who ore the present incumbents in the positions held by the previous grievors.] Employer's counsel, submits that the issue before us has alreody been decided: the positions of the two grievors ore property classified; and further, that this decision ts confirmed by the Donnetl~ decision, where oil re~evont conditions were the same except the Iocation of the grievor tn a different region. Counsel For the Employer urged this panel to follow the Bloke award where Chairman Shame stated that tt is not appropriate for a panel to "overrule" decision of another panel of the Board untess exceptional circumstances existed. Counsel submitted that exceptional circumstances do not exist in this case and that these grievances should be dismissed on the grounds that the issue has been decided. Counsel for the Union replied that the issues, the facts, and the arguments in the grievances before this panel are different from those: which were decided by the earlier panels on the classification grievances of previous incumbents in the same or similar positions held by the grievors. He pointed out that unlike the earlier cases.the issue to be decided in this case does not involve the class standard, not whether the positions are correctly classified according to the applicable or alternative class standards, but rather the issue here is whether the class usaae argument can be sustained on the evidence and bring about a change in the grievors' classification. Because the evidence required in order to consider the preliminary matter are intertwined with and not readily separated from the evidence going to the questions on merit, we ruled not to bifurcate the case. We continued to hear all the evidence and submissions of the parties, with respect to both the preliminary issue and the merits of the grievances. Testimony for the grievors was given by Steven Wayne Dodgson. The parties agreed that Beat's evidence wouId stand for both grievors. It ts agreed fact that the duties ond responsibilities of their respective positions are the same for the two grievors. Testimony for the Employer was given by Jack White who supervises the grievors, iii may be noted that White, a previous incumbent in the grievors' position, was one of the three grievors in the second case cited above.] ON THE PRELIMINARY ISSUE This classification grievance is proceeding on the basis of a "usage" claim: that the duties and responsibilities of the positions held by the grievors are substantially the same for a position in Huntsvitte which held by Steven Wayne Dodgson and which has been classified as Arbortculturtst t since December ZS, 1990, the date on which authorizotion was given for the change in classification from the previous classification of Highway General Forema~ 1. This ~usage" issue or argument could not have been available to the Union at the times when the Foster case was heard on 3onuory 14, 1983, os wetl as when White/Foster/Kellar was heard on December 21, 1989 & March 21, 1990, because these cases were heard before the fact of the use of the Arboricutturist class for the comporotor position in Huntsville, which is December 28, 1990. However, this usage was in effect when the Donnell¥ case was heard on 3anuary 31, 1992. There is no evidence to establish os fact whether the Union did or did not know about the Huntsville usage at the time of the Donnell~ hearing. However, even ~f the Union did know this, we have no way of knowing whether ~he Union could have osserted a. usage claim at that time. ~t is not known whether or not.the Union consciously decided not to use the usage argument. The facts oF the Donne~y grievance may have been d~fferent from the ~nstont case. We have no evidence to ~udge whether or not Donnelly's duties and responsibilities were substantially similar to those which ore used here ~o support the usage claims for the grievors. The Employer submits that the Union should not be permitted to assert a usage argument at this time on the grounds that it could have done so at the times when earlier classification grievances were heard, particularly at the time of the hearing on Donnell¥. The onus is on the Employer to prove not only that the Union could have done so, but also that the Union was obligated to do have done so at that time, as prior conditions [n support of a ctoim that the Un,on forfeits the right to argue a class usage ctaim in the instant classification grtevonces. We find that the Employer has foiled to prove its claim that the Union has forfeited its right to pursue a usage argument at this time. Because it did not submit the Huntsville usage claim in the Donnellv case, does not, by itself, preclude the Union from legitimately making such o submission in respect to the grievances now before us, involving different grievors tn a different location, and allegedly different foct~. The usage orgument presents this panel with o different issue to decide than the issues 1 that have been decided by the prior ponels where the appropriateness of the class standard was in issue. Because the Huntsville usage was not placed os on issue before the Board in Donnelly does not mean that it can not be presented now os o new and different issue to be decided by this penel. The grievances before this pone1 ore not the some os the Donnelly grievance: the issues ore different, the arguments ore different and the relevant facts appear to be different. We adopt the views expressed by Vice-Chair Brandt in ~inistrv of Correctional Services & OPSEU (Aubin) [390/91], p. 10: ~...We do not consider our disposition of this case to be in contravention of the guidelines established tn Bloke. In our opinion Blake does not prevent a particular panel of the Board from finding relevant factual distinctions between cases. Bloke requires that different panels of the Board not overrule earlier decisions of other panels unless the c~rcumstonces ore %xceptional~. It does not require o panel to follow an earlier case where that case can be distinguished on grounds which ore material and re~evant.~ Thus, it is not that we refuse to apply the guidelines established in E~oke when we refuse to follow the earlier cases involving the classification grievances of employees in positions classified os Highway'General Foreman 1. ~e hove distinguished those cases on grounds which ore material and relevant. Nor are we overruting earlier decisions of other paneIs. Rather, we find that the Bloke guidelines ore not applicable here because the earlier panels hod decided issues that are different from those issues which ore before us in this instant case. It is our duty to address the issues before us and to make our own decision on them. ~e con not reject the usoge argument simply because it was not addressed by earlier panels which hod addressed different claims [class standards] from earlier grievors in the some classification. Our decision may may not be consistent with the earlier decisions simply because we are concerned with different grievances which involve different arguments, facts and issues. He considered also the doctrine of res ~udicata and the policy of manifest error as they have been applied by other arbitrators [tn cases submitted by counse! for our consideration] and we find that they are not ~issues in the instant case. In deciding the issues tn the grievances at hand, we are not facing a claim that prior awards were manifestly wrong, nor are we called upon to depart from, upset, override or correct decisions on any of the issues which have been adjudicated by other panels of the Board. For the reasons set forth above, the preliminary objections of the Employer ore dismissed, ON THE MERITS OF THE GRIEVANCES As already noted above, this is a classification grievance which ts based upon a ~class usage" cIatm, and not upon a ~class standard" clatm. The grtevors claim they should be classified as Arboricutturist 1, the same as Dodgson, who ts employed tn Huntsville, because their duties and responsibilities are substantially the same as Dodgson's. Counsel for both the Union and the Employer relied on the same cases: · (1) OPSEU CAnstett et al~ and Ministry of Correctional Services [1991]; GSB 5/85 et ol (Knopf) (2) OPSEU (~allace and'Jackson) and Mtntstrv of Health [1987]; GSB 274/84 (Gorsky) (3) OPSEU (Hesltnga et ali and Ministry of Correctional Services [1990]; GSB 12/85 et al [K~rkwood) Counsel for both Employer and Union took similar positions tn this grievance. They agreed that a usage claim succeeds on the "substantial similaritym test. Several panels of the Board in the post hove eccepted that a '~closs usage" claim succeeds on this test when the Union proves that the grtevors performing duties and responsibilities which ore substantially similar to those assigned to a comporator ~ob tn o hi§her classification. It is established case law that a classification grievance can succeed in obtaining a higher classification on a usage claim alone, subject to the substantial similarity test, whether or not the grievor's position is correctly classified according to the crass standard. As Vice-Choir Gorsky observes, previous panels of the Board have held, in usage claims, that ~the Union must show ~that the Employer's actual ctossificotion system differs frc~n the written one'.~ And further: Kin its decisions over the years, the Board has come to accept that this test is satisfied upon a showing that the Grievors are performing substantially similar work to that assigned to o job in o higher classification." OPSEU (~otloce and 9ockson] end ~inistrv of Health [1987]; GSB 274/84 (Gorsky) pp 3-4 [The relevant cases ore cited therein.] It is co~on ground, therefore, that in order for the grievors to succeed, the evidence must support the conclusion that the duties and responsibilities of the grievors are substantially similar to those performed by a person in a higher classification. Counsel agree also that we must take a holistic view of the jobs we are comparing; that is, it is necessary to take o view of each job as a whole, we must look at the whole body of duties and responsibilities which make a job what it is, and that it is not sufficient to examine separately each of the distinct and specific tasks which are the component elements of a job. We accept the holistic approach, but it is our vie~ that in order to succeed the onus is on the Union to prove that the grievor's job, the job as a whole, is substantially similar to the class usage job in oil of its distinctive and essentiol elements or components which comprise the core duties. ~e agree with Vice-Chair Gorsky: ~...it is not o task for task comparison that must be met but rather a test bosed on distinctive and essential elements being performed..." [in ~allace and ;ackson {cited above} at p.4] Thus, we must find in the evidence that oll of the essential elements and components that are present in the comparotor position [for the class usage claim] must also be present in the position of the grievor, and that the tatter must not be deficient in respect to any one of the distinctive and essential elements or components of the comoarator ~os~t~on. It is acknowledged there is considerable overlap in the responsibilities end duties of the grievor's jobs end the comparator position. Counsel for the Union submits that the apparent differences are not significant, that the differences are not so great as to prevent a finding that there is e substontia! similarity between the jobs. Union counsel observes that Dodgson's duties os Night Patrol Supervisor during the winter months, as shown in his Position Specifications (Exhibit 4), were not performed the previous winter [because they were replaced by other winter duties when he was assigned supervisory responsibilities for ~ special employment project under the Anti-Recession Program]. ~hile it is acknowledged that the grievers do not have such duties in their Position Specification (Exhibit 3), the Union's counsel submits that the Night Patrol duties have nothing to do with Dodgson's essential, distinctive, core duties, all of which relate to horticultural and roadside vegetation management functions, and therefore they are not to be regarded os core duties essential to his Arboriculturist 1 classification. He submits further that Dodgson's duties regarding Ontarto Hydro~permits [issuing, Signing, and assuring compliance with the conditions of issue] are not o core duty that is sufficiently different, or they are not of such scale or magnitude as to be regarded a core. duty. Union counsel submits also that none of the apparent differences tn the core duties are significant. Counsel for the EmplOYer acknowledges that because of the considerable overlap in field work, the position descriptions for the grievors and Dodgson, on first impression, look very much the same. Nevertheless, she urges the Board not to minimtze or trivialize the s~gnificont and substont~et differences in respect to the important core duties which are present in the cornporator position and which ore absent in the grievors' jobs. Employer's counsel draws attention to the evidence on the proportion of time spent on field work which indicates the more difficult and complex administrative responsibilities which Dodgson has and which the grtevors do not have. It is Bent's evidence that 65 to 7~ of his working time is in the field and the remainder of his working time is in the office. Dodgson testified that about half of his working time is in the office and the remainder is outside the office. Counsel for the Employer submits that Dodgson's night patrol duties ore significant, amounting to 35-4~)~of his time tn the winter months, while the grievors hove no such responsibilities in the winter months. She argues that this difference alone is substantial enough to defeat the class usage claim; and certainty, when this difference is combined with the other important differences, such os the differences regarding the levels of responsibility, it ts abundantly clear that the positions ore not substantially simitor. We agree that Dodgson's winter night patrol duties [in spite of the exceptional assignment to different special duties the previous winter] ore important and substantial, but if that were the only difference, standing alone and by itself, it may not be sufficient to bring us to the conclusion that the positions ore substantially similar. But that is; not o question we must answer at this time because we are committed to taking a holistic view, to look at ~tl the differences together within the context of the whole job. The evidence points to additional differences that must be considered together with the difference in winter duties. However, we have no hesitation in agreeing with the submission of the Employer's counsel that viewing the night patrol duties together with other differences, and viewing the jobs os o whole, the jobs of the grievors ore substantially different from the comporator position occupied by Dodgson. It is acknowledged that the overlap is essentially in the field work. However, Dod§son's work, including his field work, is much more self-directed os co~pared with the work of the grievors. He testified that as Landscape Foreman he reports to the Services Supervisor, Eric Spinks~ who ~n turn reports directly to the District Engineer. tn addition to Dodgson, five other positions report to the Sptnks: Sign Erection Foremom; Zone Pointing Foreman; Bridge Repair Foreman; Carpenter; and Electrician. Dodgson testified that his supervisor relies completely on his expert skills and knowledge concerning orboriculturist work. Dodgson testified that Spinks is ~n no way on expert on arboricutture" and that the other positions reporting to the Services Supervisor hove no responsibilities for or special knowledge regarding his arboricultural, landscaping and horticultural work. Dodgson's supervisor relies greatly on Dodgson's expert experience and spec{olized knowledge to plan and implement his own work schedules on landscaping end forestry work for which he submits o weekly work plan to his supervisor who rarely mokes any chonges. He usuat~y keeps his supervisor informed of changes he makes in his own work schedule, but otherwise the evidence does not ~ndicate frequent contact between them through the week. Dodgson testified that occasionally h~s supervisor ~ould ~tell me to do one th~ng when I had planned another". On infrequent occasions his supervisor might assign him to do certain work, for no more than a day, under the supervision of another foremen. There have been similar infrequent occasions when members from the crews of the other foremen, and even foremen themselves, hove been assigned by the Services Supervisor to do certain work under Dodgson's supervision, for short periods of time. The grievors are supervised more closely than Dodgson. The grievors submit their work plans to White, their immediate supervisor doily os well os weekly. Their supervisor, whom they respect for his superior expertise, experience and responsibilities tn orboricutturot matters, often introduces his own prtohtttes, odds specific tasks o~ assignments, such os the investigation o~ o particular public complaint. He frequently makes adjustments in their work schedules on a day to day basis. Bent testified that his supervisor knew where he was and what he is doing at ony time every day, through ~rodio contact". The grievers meet at the start of every work day with 3tick White, Supervisor of Roadside Management Services, who in turn reports to the Services Supervisor in District 6 (Toronto). Dodgson reports similarly to o Services Supervisor in his own district. Compared to the grievers, he gets substantially less over-oil direction from his supervisor. Dodgson's work is much more self-directed. Counsel for the Union submits that the technical information, advice and guidance which Dodgson gets from the orboriculture end c,ther experts in the Heed Office should be regarded as equivalent to the advice and guidance which the grievers obtain from their supervisor. We do not agree. The evidence shows that Dodgson does not get the directions from the Head Office which the grievers get from their supervisor. Dodgson testifies that the Head Office experts, ~the university degree people" do not normotty set priorities for him. He tokes difficult technical questions to them. They send him ~informotion and literature". The Head Office experts visit him annually, and eisa on his request which is not more than three or four times per year. ~They visit when I wont them", he testified. ~I decide on the planning and design arrangements. On site, I con change them [such ptoos or designs os may occasionally be prepared by Head Office] os I see fit .... If they say certain plants ore not appropriate for my zone I won't go over their heads. I respect their opinions." The Head Office experts may prepare plans for a specific project, such as a beautification project, either at its own initiative, his own or his District Engineer's initiative. He would make changes in the plan os he sees fit. Our judgment is that Dodgson~s work relationships with the Head Offtce experts ore s~milor to those of the ~rievors' supervisor. The Head Office provides expert technical support services to Dodgson which ore in no way comparable to the supervisory directions which the grievers receive from ~hite. The span and scope of Dodgson's core duties and responsibilities for decision- mokino ore approximately similar, in many significont components, to White's core duties and responsibilities; and they ore substantially different from those of the ~rievors. Dodgson has responstbilities for decision-making, for planning and d(recttng his own work as well as the work of others, which ore brooder tn scope and at o higher level than that of the grievors. They ore more comparable to White's responsibilities. Dodgson's duties in planning and directing the work of his subordinates and in delegating tasks to them ore ver~ similar to White's supervisory duties tn regard to the grievors. While tt ts acknowledged that the grievors supervise their crews, they do not hove such duties at o level which ts substantially comparable with Dodgson. Dodgson and White have substantially comparable duties for preparing, signing, and issuing Ontario Hydro permits, as well as for assuring compliance with the terms and conditions of those permits. The.grievors do not have comparable duties re~ording such Hydro 'permits. Dodgson and ~htte have also substantially comparable duties, which the grievors do not hove, regarding the supervision of tree planting and tree maintenance work under contract. Dodgson and White have also similar responsibilities for investigating and resolving public complaints. White delegates to the grtevors the tess complex and less difficult complaints, and personalty attends to the more serious matters such as boundary complaints. White, and not the grievors, ts the Mtntstry's expert court witness tn matters pertaining to boundary disputes. The main 'difference between White and Dodgson regarding public complaints is that White seems to hove o larger volume of complaints tn his district os wet! os some. more complex complaints. Because of the greater volume, he delegates more of the investigation work to the grtevors; while Dodgson appears to do more of such work himself rather than delegating tt to his crew. Thus, some measure of overtop tn the field work involves the investigation.of public complaints. Again, Dod~son's field work on public complaints, as on other matters, ts substantially more self-directed [more independent of his supervisor] os compared to the grievors who investigate complaints on instructions of their supervisor who assigns them the cases and reviews and authorizes their actions [except for such cases os may come to the grtevors directly on occasions while working in the field]. We judge the difference tn this component of the core duties to be substantially greater for the comporotor position, but only marginally so. In his testimony, White described the grievor's as his ~eyes, ears, and legs tn the field". When he meets with them every morning he assigns them the porttcutor fietd tasks that he wants them to do, and he obtains from them the field information and data which he needs for his decision-making. For example, they bring him much of the row data he needs for costing certain projects, and for preparing the documentation on annual planning and budgeting which White submits to the Services Supervisor. Dodgson otso collects much of the some fieId data os do the grtevors, but his responstbittttes go much beyond that, to o significantly higher level. His responsibitittes ore very much tike Whtte's tn that he prepares the annual planning and budgetary documents for submission to the Services Supervisor. The grievors do not prepare such written documents, although they provide the supervisor with fietd data and observotions which Whtte uses os inputs for preparing the documents which ore sent to higher levels for approval. In respect to the levels of duties and responsibility tn the planning and budgeting functions, we find there is o substontiot difference between the grievors' jobs and the comporotor position. Both Dodgson and White also have certain comparable responsibilities regarding contract supervision for tree planting and maintenance work. While White has at times delegated to the grievors some tasks related to his responsibilities for such forestry contract supervision, and Dodgson has similarly delegated such tasks to members of his crew, tn no way con the evidence support o ctaim that Dodgson and the grievors hove comparable duties and responsibilities regarding the supervision of forestry contract work. Thus, the Union has not discharged tis onus of establishing that the duties of the grievors ore substantially simitor to those of the comporator posit~on of Arbortculturtst 1. In the result, for the reosons given herein, the grievonces fail. DATED AT HAMILTON, ONTARIO, THIS 4ChDAY OF Novembex, 1992. /HARRY ]./~ISGLASS,V£ce]-Chairperso, E. SEYMOUR, MEMBER - ..... M. O'TOOLE, MEMBER