HomeMy WebLinkAbout1991-2928.Homonko.93-08-10 O~ARIO( r ' EMPLOYES DE LA COURONNE C"'
CROWN EMPLG' --ES DE L'ONTARIO
GRIEVANCE C,OMMISSION DE
I / SETTLEMENT REGLEMENT ,
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, M5G 1Z8 TELEF'HOtqE/Tr~L~PHONE: (416j 326-~'388
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2928/91
IN THE MATTER'OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Homonko)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Transportation)
Employer
BEFORE: R. Verity Vice-Chairperson E. Seymour Member
F. Collict Member
FOR THE J. Monger
UNION Counsel
Gowling, Strathy & Henderson
Barristers & solicitors
FOR THE J. Lewis
EMPLOYER Counsel
Winkler, Filion & Wakely
Barristers & Solicitors
HEARING January 27, 1993
June 1, 2, 1993
2
DECISION
The grievor, Leo Homonko, has worked in the position of
carpenter foreman in the Ministry's Thunder Bay district for 11
years. In a grievance dated January 15, 1992, he alleges that he
is improperly classified as "maintenance carpenter, foreman". He
seeks "a ~ Order" requiring the Ministry to reclassify his
position.
The grievor claims his actual duties exceed those anticiPated-
by the class standard and that he performs his job with a degree of
autonomy which is beyond the standard.
The grievor acknowledges that his actual duties and
responsibilities are accurately described in the position
specification and class allocation form (Exhibit 2)-. That form
reads, in material parts, as follows:
2. Purposes ~ I'ositi~n
To ~rvise ell carpentry work in the District mhd to perform ;ar~try duties relat~ to ~he
~oti~, =internee, ~lteration a~ r~ir of f~ciliti~ within t~ distriot.
U~er the g~er.l direction of t~e.$,rvices Supervisor, res~$ible for:
1. ~upervi,es the car~ntry fun~ti~ with in th~ district ~:
- planni~ the ~ily ~eratim of the cr~, ~ch~li~ ~ a~o~ti~ wrk to
the cr~ ~ the ~is of ins~cti~s r~utr~, ~rk o~rs a~ instructi~s
f~ the su~rvi~r;
- instructing su~rdinstes ~ revt~in~ ~rk ~e f~r ~r~ce to acc~t~
plans and sta~ard~;
- ~suring ~he ~fe~y'of ~he ~r~lace in accordance to ~rr~ Health and
~fet~ s~a~rds;
3
- .checking/signing eapLoyee and equipa~nt time aheets, expense accounts, and
arranging for overtime and ti~ off;
- advising supervisor of situations that might require disciplinary action.
2. Perfor.s adainistrative related functions such as:
- de~eLoping basic annual ~ork plan for further refinement and approval 'of
supervi asr;
-. developing sketches and ~orking dra~ings for approval; arranging for staff,
materials and equipment; authorizing aateriaL purchases and hired equipment;
estia~ting, ordertng and ~aintaining records of materials received and used;
- advising supervisor on technical considerations related to proposed projects
and ~rk in progress.
Perfor~ carpentry duties or assists crew in the day to day activities by:
- constructing cupboards, Shelves and other furniture; framing buildings,
partitions end scaffolding; installing ceilings, dr)Mall e~cl Loading ram~s;
foraing, pouring and Levelling concrete for foundation floors, installing.
reinforcing steel, laying bricks and erecting concrete block ~elLs;
constructing vooden sign stands and brackets, truck racks, tool boxes,.
packing crates, etc.;
- maintaining/ altering and repairing facilities by shingling roofs, repairing
~aLt sheds and domes, repairing/replacing hard,are such as Locks, h~nges and
glass, undertaking sheet metal uork, carrying out trailer renovations,
installing and repairing plumbing systess and related equipment, renovating
.b~iLdfng interiors, etc.
Performs other related duties as assigned such as operating services vehicles used for
the transportation of tools, materials and staff, etc.
Sl~LLs and kn~L~ required to perfor~ job at full vorking Level
poosesaion of a certificate of queLif~catlon in carpentry, fro= the #inistry of Skills
Oevelopaent. Possession of a valid CLass "G" Ontario I)river's Licence and an HTO operator's
permit. Oemonstrated supervisory, organizational and planning skills. C-sad oral and writte~
communication skills. Skills to prepare esti~tes and to read and interpret plans and
specifications. Good ~orking knowledge of tools, equipment, methods and practices of the
carpentry trade, Knowledge of job-related occupational health and safety requireaents. HanuaL
dexterity with the'ability to ~ork under .various weather condition, s and at heights. Physical
capability to perform required duties.
According to the grievor, he spends 75% of his time performing
duty 3, while the remaining 25% is equally divided between duties
1 and 2.
The grievor supervises journeymen carpenters and, where
funding permits, some three or four "summer help". The three
person carpentry crew services the carpentry needs of 19 district
patrols as well~ as the district sign crew, the bridge crew, the
zone painting crew, the electrical crew and the geotechnical crew.
According to the grievor's evidence, approximately 80% of the work
of a carpentry crew is involved in maintenance duties. The crew
performs some new construction such as storage buildings, high
capacity salt sheds, radio buildings, general buildings, and loader
garages. The grievor's supervisor is Services Supervisor Scott
McCallum who was trained as a traffic analyst and not as.journeyman
carpenter..
The grievor testified that 75% of his job involves practical
carpentry work. He stated that he undertakes an annual district
review of patrols and sub-patrols to determine maintenance needs,
and that he writes work orders for needed repairs. Mr. Homonko
testified that he 'is responsible for costing of jobs in terms of
dollars required and planned man hours. His evidence was to the
effect that he determines the priority of most tasks to be done.
For the past year and a half, Supervisor McCallum has required the
grievor to prepare and submit a bi-weekly tentative work'schedule.
While the grievor does receive some direct assignment of work
from Supervisor McCallum, he maintains that the majority of his
work is self-generated as a result of his annual review of
facilities and the requests which he receives from patrol
.supervisors~and crew supervisors throughout the course of the year.
5
The grievor contends that he has annual budget input and has
administrative duties such as the approval of time sheets, expense
accounts, scheduling and approval for overtime, and the taking of
lieu days and vacations by the crew. In addition, the grievor
testified that he is required to requisition supplies and to
maintain the District's inventory of materials. The thrust of the
grieVor's evidence is that he decides what carpentry workis to be
done and when it is.to be done.
The preamble and class standard in question read as follows:
Prea~Le
ALt~h the. w~)rk in the field is not precL~, most of the ~siti~s aLLo~at~ to these
~a~s~ involve ~int~nce ~rk on~ ~n or a~t a ~vern~t institution~ ~ldi~, on f~e~d office
or ot~en establ~sh~t or its as~ociat~ ~ui~t, S~ ~siti~s ~y also involw c~structi~, or
a~t~ra~ to ~truotures or th~ instal~ati~ of n~ ~ervices or ~uip~en~, ~st of these classes are
gr~ in ~ leve~s~ i.e~ J~rney~n a~ Fore~n~ with ~vision fon ~siti~s ~er~ ~ ~
dutie~ ar~ r~uir~. ,
~e ~intenanc~ ~c~an~ aer~s, ~ver, ~ist~ of f~r ~evel~: Hel~r~ I~nover,
J~rn~n ~ ~int~e Fore~n. T~i~ ~eries ~ ~nt~ to oover the follow~ sit~ti~
1. To ~rmit recruitment of e~loyees with Limit~ for~L ~u~ti~ qumlifi~ti~, ~, th~h
~ the )~ traini~ a~ experience, ~y p~ressive~y acquire the ~ge a~ ski~s ~i¢h
vitL aL~ them to advice to ~;iti~a invotvi~ rare ~tex ~rk a~, ev~t~LLy, to
~rney~n ~eveL ;~iti~ p~vid~ a varney exists in an a~r~rtate ~siti~.
2. To ~ver situati~s where there ~s a r~uire~t for the sk(lls of a ~rtJcular tr~e ~t
establishment of a ~iti~ in t~t ~cific trade.
). To p~vide for muHrvi~ry res~nsibikity over m variety of skiLL=, rmther t~n t~se of
=~=ifi~ ~kiL~ trade.
~ese classes ~y aL~ ~ us~ to ~ver ~=iti~ invotvi~ ~rk r~uiri~ vmri= ~rees of
~nuaL =kiLL~ ~t ~t ~r~Lky as~ciat~ vith a ~cific trade~ e.g, re, ir of tri~= ~ =u~ey
c~ins; re, ir a~ ~inti~ of bri~es; re, ir $~ r~finishi~ of c~s a~ ~ts; ~rati~ of
~ater a~ s~age dis~ system.
In ~st ~ses~ in mt~ of these ckasse=~ to q~ify for the fore~n Level the ;;(.ti~
~ever, the duties involve the hiri~ a~ $uHrvisim of ~ifi~ ~ocm~ tr~es~n~ ~ the =itc, for
the durati~ of a specific pro~ect. Such ~siti~m ~y ~ m~kocat~ to the ~rtt~t For~n c~ass
pPovidN t~t 6upervision of t~ or ~re Lo~k tr~es~ is r~uir~ for et ~east. ~ of the
Forth ~sitf~s a~ ~imit~ to ~e in~t. ~re tw or ~re inGOts ~re t~
~s~ibtLtttea of a ~siti~ ~ich ~Ld ~ ciasmifi~ at the FOrth Level if assu~ by ~e
in~t ~iy, the ~siti~ ~tLL be ckasstii~ at t~ j~rn~n LeveL. Xn at~ ~aiti~s in the
~tnt~nce ~c~ntG or tr~es cLaase~ the inc~t~ ~st devote at Least ~ot their tiw to
$
maintenance or skilled trades duties.
Because of t~ wide rqe a~ great variety of ~tiea a~ unpredictable nature of ~ny of the
~rk projects requir~ of ~msitions allocat~ to these classes, a relatively la~e nu~r of
allocations will, inevitably, be atypical to s greater or Lesser d~ree. The reas~i~ follmed in
relati~ the duties of such atypical ~x3sitions to the ki~ ~ level of skills gll~ for by,.the
definition of the class applied, s~Klld be grefully ~cumented in all ~uch allocations.
i/here ~sitions in these cle~ses exist in an Ontario ~tospital, ~4ospitml Sc~l, Adult
Occupatiorml Centre, Reformato~, Training S~l or similar institutions, the intuits ~y
provid~ w~th ~tient, nesid~t, trainee on in,ts hel~rs. In all tr~es or
~sitf~s ~ere such het~rs art provi~, incurs are r~uir~ to ~u~rvise, guide a~ ~n~truct
their eesign~ hel~rs at~i~ to their g~bilities ~ ~ra~nt a~, ~ far as i~ ~sible, to
break ~n the ~r~ ~nto tasks their hel~rs are g~b~e of perfor~i~. ~is su~rvisi~ of ~ti~t,
re~id~t, t~ainee or ingle het~rs ~s ~ grr~t alLogti~ to the FOrth
intuits of a ~siti~ or ~tti~s olassifi~ in a j~rnt~ tr~e~ ~tas~ ~st ~ su~rvi~ to
warrant the Fort~
~I~:
I~ s~ ~s~s~ ~ o~ the ~u~es ~vo~va ~ O~r~ of the ski~
associ~t~ with ~e or ~re of the skilt~ tr~es. ~evar, the appLi~ti~ of ~u~ skills
or rest~ict~ to a ~rativety ~r~ s~cialty o~ the ~iti~ also involves the use of s~cializ~
~ui~nt. Such ~siti~s are cove~ by s~ciat classes or class series such as: Agricultural
~rke~; Electrics Tec~ici~; Electrics S~ir~n; Hi,ay Equicor ~eraton; Linen; Sign
Painter; ~en etc., a~ are excL~ fr~ the ~in~e~nce Tr~e C~asses.
_RAZNTENANCE CARPENTER. FORERAN '
CLASS DEFZIJZTIOfl:
Positions allocate~ to this CLass ~nvolve the s~rvisi~ of at Least t~ ~r~es~, e~Loy~
at the j~rne~n te~(, in t~ skiL(~ ~int~nce ~rk retat~ to the ~structi~/ g~eraL upke~
a~ re, ir of g~en s~ructures, fitt1~s, ~ui~ e~c., at · ~rn~t ~itdi~, Institution or
other estabLish~t. ~e ~Loyee, in ~siti~s in this class, is giv~ g~erat assign~ts by his
su~nvi~r a~ is r~ir~ to ~ke est1~es of ~teriaLs, p~ and ~ay ~ the ~nk a~ su~rvise it
to ~le~i~ ac~i~ to acc~t~ ~t~s in the mr~try tr~e. He determines ~rk ~th~s ~
mke~ ~ri~ic ~nspecti~s of ~rk in profess aM of the praises in g~erat a~ ~co~s grp~try
rpirs where necesgry. In ~e.~siti~s the hini~ e~ s~envision o~ local tr~e~ ~ the si~e
of tartary projects is ~n~lv~. ~e ~rk i~ subject ~o re~i~ for gtisfactory quality a~
c~Liance with directi~s or with plans a~ s~cifigti~s. ~ese ~loyees gy th~elves perfor~
any of ~he d~its of a ~Jnt~nce Carpenter. ~ my also ~rform other tasks of a relatH nature
~t at last ~% of their ti~ ~st ~ d~o~ to ~rk invotvi~ grp~try or the tu~rvis1~ of
grpenters. In additi~ to j~rney~n trades~ they ~ supervise unski~L~ or seai-skiL~ e~ployees
a~ ~tient/ resident, trains or ingle heL~s. .
U~er directly, the e~Loyee in ~si~i~s in this ~Lass is r~uirH to p~an, Lay ~t,
supervise a~ tnspect a~t ~rpentry/ joining, ~rki~ a~ =bintt ~king work prfor~ by
j~rneygn gr~nters, other ~rkers, ~tifit, residfit, trainee or inmte he~r~, at the
estab~i~t c~cernH. He ~y also be r~uir~ to insect a~ re~rt ~ the ~rk of ~tside
c~tracti~ firms.
~is ~oye su~i~es ~ ins~c~ r~irs ~M alterati~s to the interior ~ exterior
~nk of ~vennm~t ~itdi~s, instituti~s or establishm~ts a~ relatH structures such as staff
~ses, gerbes, ~rks~s, ~s, ~rns, etc.; a~ the ~structi~ or repir of' ~ articles,
~u~pgnt or ~rts within or a~t the ~Jldi~5. In ~ ~sitions the intuit su~rvises ~
assists tn the c~struct~, mint~nce a~ aL~erati~ of ~ts, ~s, ~bin~, aircraft ~kis, ~tr
cabins a~ ~ngan ~ui~t or in ~he p~ucti~ of exhibits a~ displays. ~ese e~loy~s assis~ a~
c~rate with other for~, tr~es~ a~ n~-trades staff.
~IFIUTI~:
1. Preferably tec~icat sc~l ~ucati~; ~[eti~ of. the re~nizH a~r~tlceship in the
grp~try or ~ioet ~ trade a~ certifi~t~ by the De~r~t of ~r; t or
arc,table ~uival~t c~i~tion of traini~ a~ ~erience; ~ ~rkt~ ~lHge of the
t~ls, ~ui~t, =t~s ~ practices of t~ gritty or c~inet gkJ~ tr~es.
At Least five years' acceptsbLe experience ms a carpenter.
Supervisory and Instructional ability; abttity to Lay out Work assignments from plans and.
'specifications; good physical condition.
* Where the equiveLent applies, the spplicsnt wi k k be required to successfully complete a Ctvtl
Service Trades Test.
District Human Resources Consultant Phil Cooke testified for
the employer. Mr; Cooke gave evidence as to his view of the
difference between general supervision, direction, and general
direction. An extract from a government publication on position
administration, dated February 1964, defined the terms as follows:
r~ne~m L Su~ervisim:
The employee works with considerable functional independence, as in many "journeyman" Level
clerical, technical and professi~L positions. He completes most assignments without referral to his
supervisor, exeecising judgment and making appropriate technical decisions/ based on a good Icn<)~Ledge
of methods/ procedures and precedents.
The supervisoe ia not concerned with ~ork details, but may make infrequent spot-checks.
Employee performance~ is evaluated' Largely in terms of difficulties resulting from poor work or non-
production.
The employee has been directed to achieve.a definite goal and establishes his o~n methods and
~ork procedures, deciding manpower and material requirements to achieve program ~bjectives and
recommending their acquisition. Norma(Ly he plans/ oeganizea and controls the work of subordinate
personnel. While employee ia held accountable for carrying out certain organizational objectives/ he
should not make decisions ~hich afl'ecl policy.
The supervisor does not provide technical instrqction. Employee performance and effectiveness
is evaluated basically in terms of results, through a process of inspection and review.
6metal Direction:
A senior official is held accountable by management for accomplishing departmental objectives,
expressed in teaistation, reguLations or general policy directives. I~e is expected to make dacisions
tn accordance wt:h estabLished poLicy, and usually participates in formulating that policy.'
The crux of the union's case is that the grievor has been
· allowed to perform tasks autonomously with little or no supervisory
input, and that the supervisor has delegated most of the assignment
'of duties directly to the grievor. In support, the union cited the
following authorities: OPSEU (Beach) and Ministry of the
Environment, 816/86 (Fisher); OPSEU (Cardno et al) and Ministry of
khe Environment, 530/88 %Stewart); OPSEU (Rudder) and Ministry of
Health, 402/88 (Gorsky); OPSEU (Dunning) and MinistrY. of
Transportation, 1574/88 (Gorsky); OPSEU (Ouan) and Ministry of
Labour, 1330/89 (Knopf); and 0PSEU (D. W. Canninq et al) Land
Ministry of Government Services, 558/84 (Samuels).
The empl. oyer argued that all work performed by the grievor is
encompassed in the class, standard and therefore he is properly
classified. Counsel for the employer contended that although the
grievor was not supervised on a daily basis, much of the work was
routine and that all construction projects were given to the
griev0r by his supervisor. The panel was referred to the following
authorities: OPSEU (Ethier) and Ministry of Transportation, 889/91
(Kirkwood); OPSEU (Aird et al) and Ministry of COnsumer and
Commercial Relations, 1349/87 (Slone); OPSEU (O'Neill) and Ministry
of Natural Resources, 1526/87 (Dissanayake);. OPSEU (Larmand) and
Ministry of Transportation, 887/86 (Fisher); OPSEU (Johnston) and
Ministry of TransDortatioq, 1838/89 (Verity); and OPSEU (ROY) and
Ministry of Natural Resources, 946/89 (Knopf).
Class standard, unlike job descriptions, are broadly framed
statements. intended to serve 'as a general outline of duties and
responsibilities contemplated. We adopt the rationale of Vice-
Chairperson Slone in the Aird case, supra, where he states at p. 8-
9
9:
... the addition of ne~ duties may take a jo~ o~t 6f its original ctassificatio~, bet only uhere those
duties are of such a kind or occur in a degree es to amount to a different job attogether. Sea for
example Be[(luin and Lyre, GSl~ 539/84 (PeLmer) and ,Fenske, GSB 494/85 (Verity). As these and other
cases shou, the propriety of the classification is a factual issue to be decided on the merits of each
case .... The enus is on the grtevor to show that he is actually performing s Job, the essence or core
duties of which do not fit within the crass standard to which it has been as&igned by the employer ....
In the instant grievance, the core duties of the grievor's job
fit squarely within the maintenance 'carpenter, foreman class
standard. We are satisfied that all work performed by the grievor
is in direct support of the core duties of the carpenter foreman's
position. The grievor's input into the budgetary process, which is
not contemplated by the class standard, is minimal.
~, Eighty percent of the grievor's actual duties and
responsibilities involve carpentry maintenance. The evidence
establishes that the maintenance responsibilities as outlined in
the annual work plans are basically the same format from year to
year. Of particular significance is the-annual maintenance and
repair to sand domes And salt sheds.
The three elements of the relevant class standard as
summarized by V-C Fisher in OPSEU (Larmand) and Ministry of
Transportation, supra, apply in this case; namely,
(1) There must be supervision of at least two persons;
10
(2) These two persons must either be journeyman, that is
skilled labour in the relevant trade class or qualified
local tradesman; and
(3) Supervision of either journeyman and/or tradesman must
cover at least 60% of the year.
Clearly, the grievor is a competent employee who has held the
position of carpenter foreman for the past 11 years. It is
understandable, we think, that'the grievor has been giuen the level
of autonomy that he has to plan, organize and direct the carpentry
crew. He is required, however, to submit a written bi-weekly work
sChedule to Supervisor McCallum. In our view, it does not assist
the grievor that most of his assignments are either self-generated
or come from patrol or crew supervisors. The evidence establishes
that the grievor's work schedule does not vary to any significant
degree from year to year. The grievor agreed that Supervisor
McCallum always reviews his sketches and working drawings and is
on-site to inspect all new construction projects. The grievor also
.agrees that Supervisor McCallum applies for building permits and
land use permits where required. Although the grievor is given a
significant degree of autonomy by his supervisor, it cannot be said
that he works without supervision. On the evidence, w~ must'
conclude that the grievor works under general supervision and
direction.
We find that the grievor is currently properly classified as
11
maintenance carpenter foreman. In the result, this grievance is
dismissed-
DATED at Brantford, Ontario, this 10th of August, 1993.
R. L . %~RiTY, Q.C. _ VIC~-CHAIRPEBSON
E. SSYMOUR - MEMBER