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HomeMy WebLinkAbout1980-0564.Brick et al.82-04-28!,VTAR,O :RCwN o”wLOYEES GRIEVANCE Between: OPSEU (Robert Brick etal) Grievers INS THE MATTER OF AN ARBITRATION tinder THE CROWN EMPLOYEES COLLECTIVE BARGAINiNG ACT Before THE GRIEVANCE SETTLEMENT BOARD .- Before: - And - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer J.W. Samuels Vice Chairman M.M. Perrin Member A.G. Stapleton Member For the Grievers: C.G. Paliare, Counsel Cameron, Brewin & Scott For the Employer: W.M. Kenny, Counsel Hicks, Morley, Hami lton, Stewart L Stoiie Hearings: December 7 & 3, 1081 January 25, 1982 April -, 1982 October 19 & 20, 1981 Nay 14, 1981 ally 9 & 10, 1951 August 10, 1981 CONTENTS INTRODUCTION.......................................... 1 THE CLASS STANDARDS................................... 2 a. Drafter 2 . . . . . . . . . . . . ..i.................... 2 b. Drafter 3 ................................... 5 WORK OF R. BRICK ...................................... 8 WORK OF M. CUTRONE .................................... 18 EVIDENCE CONCERNING A PARTICULAR DRAFTER~3 ............ 32 ARGUMENTS OF THE PARTIES.... . . . . . . . . . . . . . . . . . . . . . . . . . . 34 a. For the Un,kon.. . ..I......................... 34 b. For the Employer ............................ 38 CONCLUSIONS ........................................... 46 AWARD ................................................. 53 APPENDIX - LIST OF GRIEVORS................... ....... 54 LIST OF EXHIBITS..........................; ............ 55 .... -2- ,? p ., 2’ s INTRODUCTION This matter involves 36 identical grievances, which were processed separately through the first stage of the grievance procedure, and were then combined for the later stages. All 36 grievors claim that they are impro- perly classified as Drafter 2, and that they should be classified as Drafter 3. To this point, we have heard extensive evidence concerning the situations of ~two of the grievors, Messrs. R. Brick and M. Cutrone. This award disposes of their twos grievances; and, it is hoped, to the extent that our decision can be generalized, will assist the parties to find a so.lutiron .to the other 34 grievances. If such a solution is not possible, then this Board will continue to hear the other grievances. At the outset of our hearings, Mr. Kenny raised the question of the exclusion of the later grievors,. because the evidence would relate +o job content and it is important that we hear the independent testimony of each person. He referred the Board to Re Norfab Homes (19751, 62 D.L.R. (3d) 516 (Alberta Supreme Court Trial Division), in which it was held that a grievor can be excluded in his own case. vow- ever, in Vuko.je and the Ontario Housing Corporation (Griev- ante Settlement Board, 13/75), it was held that a subsequent grievor may attend the whole hearing because no legal basis was offered for the exclusion. We decided here to permit the subsequent grievors to attend the hearings, because the 2 n parties wished the Board to make an award concerning these first two grievances before we continue to hear the other grievances, and our award would be public and would recount the evidence. Hence, there would be nothing gained by excluding the subsequent grievors, since they could read about the evidence in our award. We heard evidence and argument in 1981 on May 14, July 9 and 10, August 10 and 11, October 19 and 20, and December 7 and 8, and in 1982 on January 25 and April 2. Because of the importance of this award to so many persons, and its potential impact on so many grievances, we have reviewed the testimony and documentary evidence with particular care, and have set it out here in some detail. Furthermore, we deal only with the question of classifica- tion, and remain seized of the matter of any compensation, at the request of the parties. THE CLASS STANDARDS The grievors are all Drafter 2 and claim that should be Drafter 3. Following are the Standards estab by the Employer for these two classifications.' a. Drafter 2 CLASS' DEFINITION: This class covers complex drafting work, they lished in- volving plans with intricate details, ~difficult mathematical calculation, extensive survey inter- pretation, basic engineering and architectural principles and a variety of reference data. In some positions, under a professional engineer or designer, they perform drafting work involving considerable minor design. These employees may supervise a small group of draftsmen performing moderately complex drafting work. They work under the general supervision of senior drafting staff with considerable latitude for initiative re- garding the drafting techniques used. They are expected to complete work assignments with a minimum of review. CBARACTERISTIC DUTIES: : Compile,.plot and draft the more difficul-t and important survey plans, drawings and plani- metric maps. Correlate and interpret varied reference plans and material; plots and check detailed survey plans from field notes; check azimuth calculations; calculate difficult compound and reverse curves: formulate information derived from surve,s field notes to be calculated on elec- tronic computer for the purpose of determining description ties, metes and bounds, and areas of _.~ land. When required, check ownership .of property by reference to Land Titles, Registry, Crown Lands, Patents and Municipal offices. Interpret survey conflictions, resolving minor discrepancies and outlining the nature of major conflictions to, .. superiors. Make a thorough and independent check of difficult survey plans in accordance with departmental specifications'and pertinent legis- lation prior to registration in Land Titles or Registry Offices. This checking function is reviewed solely in terms of results. May'be required'to instruct others in the plotting, computing and checking of survey plans. Working under the general supervision of a professional engineer. or more senior draftsman, prepare final bridge design drawings 'from en- gineering notes, ,sketches and instructions. Assist in the design of simpler parts of complex bridge structures. Prepare all necessary detail drawings; place reinforcing steel in accordance with engineering instructions; prepare steel schedules and quantity estimates; prepare and ~interpret in-put data for electronic computer; may be required to instruct more junior staff members. _ _. Under the general supervision of a designer or professional engineer, prepare final working drawings and plans related to electrical, mechan- ical, structural, architectural or sanitary en- gineering. At this level, the draftsmen handle a com- plete drafting project with a minimum of direc- tion, and are responsible for considerable minor design. Work is reviewed on completion. May be required to instruct junior drafting staff. For example, in the electrical engineering field, prepare 'complex".electrical layout drawings per- taining to large buildings, electrical vaults, power houses, and outdoor sub-stations. Under direction, design or revise electrical layouts on small projects; .OR in the architectural drafting field, prepare sectional views, detail, elevation and finished working drawings for institutional, residential, office and industrial types of buildings. Responsible for indicating require- ments and preparing detail drawings on minor structural components such as expansion joints, coping details, fittings, drains, washroom fa- cilities, mirrors, shelves, cupboards, cabinets, windows, doors and stairways. In minor super- visory positions, correlate and compile reference material: assign work and outline instructions: supply technical guidance; contact engineering and departmental officials for infc-mation and clari- fication: make a detailed check of completed drafting work and calculations prior to a general review by a senior staff member. QUALIFICATI~ONS: 1. Grade 12 Secondary Education, preferably Grade 13 Mathematics, or an equivalent com- bination of education and experience. 2. Five years as Draftsman 1, or three.years and successful completion of examinations ap- proved by the Civil Service Commission. In Sections where examinations are used they must be passed. c. 3. Thorough knowledge of drafting techniques and work procedures: where applicable, sound knowledge of mathematics, broad understanding of survey practice, good knowledge of per- tinent provincial and federal statutes and departmental specifications; some supervisory ability: initiative. -I- b. Drafter 3 CLASS DEFINITION: This is normaily responsible supervisory drafting work. These employees are responsible for the accuracy and completeness of the drafting performed in their work unit. They supervise a medium-sized group of draftsmen performing complex drafting or design drafting, being directly re- sponsible to a senior engineer, forester, survey staff official, or to a senior draftsman. This class also covers positions of employees engaged in highly technical sub-professional design drafting under the direction of an en- gineer, architect or designer, where supervisory responsibilities are limited or non-existent. Also included are positions where the supervisory responsibilities are secondary to highly technical survey drafting performed for senior survey of- ficials. CHARACTERISTIC DUTIES: .- Under senior engineering staff, surveyors or-, senior draftsmen, supervise medium-sized groups of -i,g:: draftsmen-engaged in plotting, computing, tracing and checking complex engineering and survey plans, drawings and planimetric maps. Interpret and clarify field notes, search data, design criteria and engineering specifications: outline or~compile reference material: assign duties and specify requirements: supply technical guidance: make a detailed check of completed work; consult with field and engineering staff on technical matters; direct the operation of coding and decoding in- formation for survey calculations made by elec- tronic computer. i In sub-professional ,design work, use basic design principles to calculate the forces acting on structural components, moments of inertia, bending moments and shear. Under direction, design the simpler parts of complex bridge structure, wing walls, retaining walls, footings, beams, bearings, finger plates. Direct a small staff of draftsmen in the preparation of final bridge design drawings by preparing preliminary sketches and instruc- tions, assigning duties and making a review of completed work. Prepare drawings, detailinys and specifications as assigned for construction projects: check and .approve shop drawings prepared by others; estimate quantities-band costs of materials required under supervision and direction. Perform special investigational work for senior surveying staff on unique mapping problems re- lating to land titles. As supervisors, they are responsible for the training of drafting staff, making recommendations on personnel matters, and acting as instructors on the ministry drafting courses. QUALIFICATIONS 1. Grade 12 secondary education, preferably Grade 13 mathematics or an equivalent com- bination of education and experience. 2. At least seven years' related experience and a minimum of two years as a Draftsman 2 or equivalent duties. 3. Expert knowledge of drafting techniques and work procedures; where applicable, thorough knowledge of mathematics, thorough knowledge of suryey practice, pertinent provincial and federal statutes and ministry specifications: supervisory ability; initiative: tact; good judgement. (Emphasis appears in the original). As well, there is a general introduction to the Draftsman Series, which provides: KIND OF WORK COVERED: In general, employee work assignments in this Series require the exercise of manual skill in the manipulation of drafting tools, and the utilization of knowledge of technical procedures, engineering practices and mathe- matics in order to complete clear accurate plans. Such work involves the preparation of various engineering and survey plans, planimetric maps, engineering design drawings; computa- tions related to surveying and basic en- gineering, illustrative drafting for publi- cation and office use, and the supervision of. drafting functions. EXCLUSIONS FROM THE DRAFTING SERIES: 1. 2. 3. Positions in which the primary emphasis is on the calculation of quantities from engineering plans should be considered for allocation to the Engineer's Assistant Series. Positions with considerable illustrative work of a graphic and artistic nature may be more properly classified in the Commercial Artist Series. Positions which consist of predominately clerical duties, but which require some minor and incidental drafting, should be carefully analyzed for possible alloca- tion to the Clerical Series. ALLOCATION FACTORS IN THE DRAFTSMAN SERIES: The allocation factors pertinent to the Draftsman Series-may vary considerably .from position to position. However, the following are the more common and important factors: 1. Ability to do mathematics, with the knowledge required ranging from ele- mentary algebra and geometry to elements of Grade 13 mathematics. It is im- portant to know the scope and variety of mathematics required, and the availability of specific guidelines. 2. ~The drafting skill level required in a position. Three grades of drafting .., skill exist, trainee, competent and accomplished. Above Draftsman 1, skill level is normally significant only in combination with other. factors. 3. Specialized knowledge of pertinent legislation, survey practice, basic c~, engineering principles,, and knowledge of departmental standards;prodedures and policies. It is important to analyze carefully the essential nature and extent of these requirements before their significance can be assessed. 4. The nature and extent of supervisory control exercised over the position by a higher authority, although in the 'field of drafting the normal pattern is for all completed work to be reviewed for I. - 10 - accuracy regardless of the level at which it was performed. 5. Supervisory responsibility including the scope, complexity and importance of the drafting function supervised, the number and level of those positions supervised, the degree of responsibility assumed for completed work and for the training of junior staff. It must be emphasized that the size of the drafting group supervised is meaningful only in com- bination with the position's overall dutie; and responsibilities. In some areas, the specialized nature and com- ..I plexity of the work supervised is a more significant factor than the size of the groups. WORX OF R. BRICK ~Mr. Robert Brick is a Senior Technician Plans in the Surveys and Plans Section of then Ministry's Central Region (which is one of the five regions across the pro.- vince). We received in evidence several organizational charts of the Section, and what follows is a simplified chart, showing only those positions'which are critical to this matter: I 1 Head Surveys and Plans I Senior Supervisor Plans Coordinator Supervisor Surveys Technician Surveys Junior - Technician Surveys r--t.l Supervisor Plans Technician The Surveys and Plans Section has a total com- plement of some 120 employees, and acts as a service organ- ization to the rest of the regional administration, pro- viding base maps, and engineering and legal plans. The Section is one of a number of units, which together make up the Engineering and Right of Way Office. This Office con- sists of: -- Surveys and Plans Section -- Planning and Design Section -- Property Section -- Geotechnical Section -- Structural Section. The Office is responsible for the planning, design, and associated components of a "facility". ~._ The Planning and Design Section does the engineering work, and Surveys and Plans provides P and D with base maps and engineering plans. Base mapping shows the "as is" con- ., ditions -- trees, houses, roadways, etc. -- and the vertical profile. The Property Section acquires and disposes of Ministry land. Surveys and Plans provides Property with legai plans. The Geotechnical Section is concerned with soil --conditions , land related features. Surveys and Plans stakes out bore holes for sampling, either in the field or by coordinate values, and depicts the borings on base maps. These services involve engineering plans. The Structural Section plans and designs struc- tures, such as bridges. Surveys and Plans provides specific engineering plans for structural purposes. There are some 24 types of legal plans done by Surveys and Plans, and some 12 types of engineering plans. As can be seen on the organizational chart of the Surveys and Plans Section, it has two "sides" -- a "field" side; which actually does the-surveying in the field; and a "plans" side, which handles the depiction of information on legal and engineering plans. Mr. Brick's work is primarily the preparation of legal plans. It is acknowledged that he is highly qualified and diligent, and is responsible for doing the'most diffi- cult jobs in this area. .._, Work comes to Mr. Brick in a folder containing a work order and its source will be either a Supervisor Plans (usually Mr. J. Daniels) or anExaminer Plans (usually Mr. P. Birks). Roughly half of his work comes from each one, and the Examiner Plans keeps track of the work being done by Mr. Brick in books established for this purpose (Mr. Birks keeps track of the work of seven Senior Technician Plans in this way) ; Mr. 2. Byblow, the Head of the Surveys and Plans Section, suggested that only 25% of Mr. Brick's work would come directly from the Supervisor Plans, however his testi- mony left questions concerning his familiarity with the say- to-day operations of the section, and I prefer the.evidence Of Mr. Brick on this point. The job will involve the pre- paration of a legal plan concerning property which the Ministry wants to sell or acquire, or on which it is pro- posed to widen or assume a highway. Together with the work order, the folder will contain'background material, such as the correspondence, surveyor's field notes, title searches, private surveyor's plans, old Ministry plans, subdivision plans, and precalculations. If all is going well, Mr. Brick will find everything in the folder needed to prepare the plan. Basically, there are two kinds of material he needs -- . . documents and other 3vidence concerning the legal~title to all the land involved, and the field evidence provided by the survey people, which should correspond with the legal situation. (that is, boundaries should be physically located where they are described in .the legal documents). If any of this material is missing, Mr. Brick must search it out in records offices, or in consultation with the survey side. If a problem arises,'Mr. Brick completes a com- plaint form which is signed by the Supervisor Plans, and this form goes to the Supervisor Surveys. It may be men- tioned to the Examiner Plans and the Party Chief' Surveys may get a copy. If the problem involves the field work, Mr. Brick will normally relate'to the survey side through his Super- visor Plans, but on occasion he will deal directly with the survey side. Mr. Brick is concerned with the nature and quality of the survey evidence -- adequacy of the monumenta- tion and other physical features, method of survey, accuracy of measurements, and agreement with pre-existing plans and documentation. He has no authority to change the field notes but may tr,y to convince the Supervisor Surveys or the Party Chief to do further field work or to makes suitable amendments in the notes. When,.the background material is in order, Mr. Brick commences some rudimentary calculations on a hand-held .m calculator -- right angle triangles, adding and subtracting chainages and distances, angles between two intersecting bearings, calculating tolerances to ensure that the overall plan and its component parts will meet the required toler- ances, and converting into a common measurement system. He will then prepare to input material into the computer, using whichever program is most appropriate. Six programs are in use in the offkce, and Mr. Brick deals with five of them. We heard extensive evidence concerning the way in which-Mr. Brick goesabout programming in order to get "the best figure", from the commencement of the opera- tion when he chooses as a starting point the strongest line" which will be on the plan, to the final product which comes off the plotter (the computer-directed machine which actually does the drawing of the plan). The evidence at our hearing included examples of a number of plans prepared by Mr. Brick and his detailed explanation of how he did the work. I have reviewed this evidence at some length and with particular care, and have concluded that it is not necessary to retell it here. The parties are agreed that Mr. Brick's work is of high complexity and requires the highest tech- nical skill. From my layman's viewpoint,. I would say that the evidence here confirms this. IYr . Brick indicated that he knew of no plans involving greater complexity than the ones he prepared, and-we had no evidence concerning such other plans. The five computer programs with which Mr. Brick is familiar are: ICES COGO, used for the computation of alignments MTC COG0 3, used for the computation of legal plans LEPLOT, used to plot plans (will be replaced by GRAPHIC, now in preparation) LSAC, or Land Surveys Area Computation, used to calculate the area off final surveys, and to tell whether the plan is within the toler- ances prescribed by the Surveys Act HORVER, used for the automated plotting of Hori- zontal and Vertical plates. In order.~to familiarize the Board of Arbitration with these programs, we received in evidence examples of work done using these programs, examples of computer input for HORVER and LEPLOT, reference charts for MTC COGO, LEPLOT, HORVER, and ICES COGO, and extracts from.the Manuals for MTC COGO, ICES COGO, and HORVER."' Again, this evidence has been re- viewed and it is unnecessary to retell it here. Xr. Brick acquired most of his knowledge and understanding of these computer programs on the job, and has large experience which now enables him to make good use of'the programs to handle the complex work he is called upon to perform. Use of the computer has not changed the nature of the plans produced by the Senior Technician Plans, but it has simplified the .job of calculation involved in the preparation of the plans. A high degree of technical knowledge is necessary tom use the programs, and this was confirmed by Mr. A. Xomorowsky, the man who developed most of the software used by the IYlnistry (HORVER, LEPLOT, CONVER, LSAC, and modifications to MTC. COGO) . ,,_ Mr. Brick estimates that only~ lo-15% of this time is~ spent in the actual drafting of the plans. The rest of his time is taken up with calculation, title searches, and interpretation of the evidence. Be suggested that he worked with virtually no supervision, however his work is checked in the same way that all work is checked in the office: Each plan is checked by a draftsman who goes over all the ~material a second time, and often takes just as long to check work as did the original plan. Mr. Brick will also . check the work of others. When he has problem; or needs advice, he goes to his Supervisor Plans, not the Examiner- Plans. Mr. Byblow suggested that Mr. Brick, and the other Senior Technicians Plans, were subject to the overall ad- ministration of the Supervisor Plans, and to the technical .? With respect to the Class Standard for Drafter 3, he acknowledged that he did no supervision, and insisted that he drafted for senior surveys officials in the Ministry. He acknowledged that the Supervisor Plans and Examiner Plans were not "senior survey officials", but indicated that under the Registry Act and Land Titles Act, he prepared plans for -17- supervision of the Examiner Plans. However, this technical supervision does not seem to apply in fact to Fir. Brick. Mr. Daniels, Mr. Brick's Supervisor Plans, indicated that Mr. Brick had more expertise on the computer than his Examiner Plans, and equal expertise in writing legal descrip- tions. Mr. Daniels agreed that almost always Mr. Brick would come to him directly for assistance when needed. We learned also that sometimes Mr. Brick will go directly with a difficulty to Mr. Christie, the Senior Super- visor Plans. It appears that, at the date of the,grievance, this occurred once a--week to once a month, but now occurs almost never. Mr. Christie characterized his direct dealing with Mr. Brick concerning problems as "very seldom" and this is a fair description. On occasion, Mr. Brick has been involved in teaching courses for the Tech 3 exam, and he has helped in the preparation of the Tech 3 examination. He has taught survey Party Chiefs the plan procedure, and he has helped articling students in Law to learn metes and bounds. the signature of the Senior Supervisor Plans, who is an Ontario Land Surveyor. As well, he said that his plans were examined in the head office. Mr; Byblow disagreed with Mr. Brick concerning work done for "senior survey officials". He said that Mr. Brick did "production work", and only 5-105 of his work would be done for senior survey officials (one of whom might be the Senior Supervisor Plans). Concerning the "Characteristic Duties'!.,~he in- dicated that he did interpret and clarify field notes (he made it clear that he has no authority to change the notes? buthe must see to it that the notes are ciarified where necessary) search data (in record books, by-laws, etc.) outline or compile reference material supply technical guidance make a detailed check of completed work consultwith field,and engineering staff on technical matters direct the operation of coding and decoding information for survey calculation made by electronic computer (indeed, he indicated that he did all his own coding, and that no one directed the coding any longer). Of those duties emphasized in the Standard, Mr. Brick indicated.that he did perform s,pecial investigational work for senior surveying staff on unique mapping problems relating to land titles, and - --~ he had prepared drawings for-construction projects. He does no engineering work, and suggested that the design work which is spoken of in the Standard is in'fact done by technicians not draftsmen. With respect to the "Qualifications" in the Standard, the Employer indicated that it made no challenge to Mr. Brick's qualifications. Therefore, we will not cover the evidence concerning his qualifications. On cross-examination, Mr. Brick admitted, to doing much that is covered in the Class Standard for Drafter 2, however he insisted that he did more than is called- for in ;. .~.e+ -ci. this Standard. '.~ For example, concerning the "Class Defini- tion"; 'he suggested that his work was "highly technical" or "very intricate" or "very extensive", whereas the Standard referred only to "complex" work, with "intricate" details, -- etc. _ ,.. We heard from Messrs. Byblow, Daniels and Brick concerning the evolution of the'draftsman's job. Prior to 1976, the "working level" was !Dr.after 1. Gradually, how- ever, as the work became generally more complex, the re- lative number of Drafter 2's increased until today there are few Drafter 1’s. -The evidence did not show that the Drafter 2's job has become more complex. Mr. Brick suggested that the jobs done in the office are more complex, but he ad- mitted that the easier jobs used to be done by Drafter 1's. On balance, I find that, as the~jobs became more complex, the personnel moved to thee Drafter 2 classification. But the job of the Drafter 2 has not become more complex. WORK OF M. CUTRONE Mr. Mario Cutrone is also a Senior Technician Plans in the Surveys and Plans Section of the Central Region. He does engineering plans and is acknowledged to be highly proficient, handling, the.most difficult work of this type. The engineering plans show topographical features, profiles, bridge sites, railway plans, and elevations with benchmarks. He spends only S-10% of his time doing the drafting itseif. Most of his time is spent dealing with the computer. In- deed, he was the first user of HORVER and is given credit for his assistance in its development. The evidence concerning the'work of Mr. Cutrone involved considerable discussion about the Ontario Coordin- ates System. This System is a base network of horizontal grid points which are located on the earth's surface by I coordinate values. Exhibit 34, The Horizontal Control Sur- veys Precis, assisted the Board to understand the System. The "first order" control stations are established by Geodetic Surveys of Canada, and consist of tablets set into the earth some 15 to 25 miles apart. The positions of these stations are established with a very high degree of accuracy and are recorded on control cards. The "second order" control stations are established either by Geodet~ic Surveys or by Survey Computation Technologists (classified as Drafter 3) within the Head Office of the Ontario Ministry. These stations are based on the "first order" points, but are closer together and are somewhat less accurately fixed than the "first .order" stations. These points too are recorded on control cards as part of the System, and are marked in the field usually by a Standard Iron Bar with the control numberon it. The "third order" stations subdivide the set of "second order" and "first order" points, and are needed to provide sufficient density and positional accuracy to serve the requirements of a particular project.. The "third order" points are established with a lesser degree of accuracy than the stations of higher order. Such points established at Head Office by Survey Computation Technolo- gists are recorded on control cards as part of the System, and are marked in the field by a Standard Iron Dar with the control number on it. Mr.: Cutrone creates "control stations" (or "points of intersection" -- PI's) for the purpose of his projects. His .points do not go into the Ontario Coordinates System, but her creates "a~corridor of third order stations" which appear on Horizontal and Vertical plates, to which many people have access within and outside the Ministry. Mr. Byblow referred to these points as 'fourth order" or as done "to the engineering or legal survey standard". While "third order" points which are in the System must be esta- _ blished to a tolerance of 1 i n 8333 (but in practice to.1 in - 22 I 10,000 or 1 in ~15,000), Mr. Cutrone works to a tolerance of lerance). 1 in 5,000 (but in practice to a finer to There,is also a vertical control system known as ,YTC Precise Level Routes. It is based on points 5 to 10 .i, miles apart‘provided by Geodetic Surveys of Canada, and is "densified" by the provincial Ministry. The MTC Precise Level Benchmarks are roughly one mile apart, established at Head Office by Survey Computation Technologists, to the same standards as the points "of the Geodetic Survey. Mr. Cutrone will then establish further points.for his own use roughly 800 feet apart. These points are established to an accuracy one order lower than those in the MTC Precise Level Routes system. Much of Mr. Cutrone's work involves the prepar- ation of Horizontal and Vertic,al plates. These plans depict the baseline on which the survey and plan for the new pro- ject are related. Ali features relating to the horizontal 3::. and vertical alignment are shown -- reference points, con- trol stations and vertical benchmarks -- in order to esta- blish it physically in the field. The Horizontal and Vertical plate will be- coordinated (that is, based on hori- zontal control stations and Points of Intersection ,which - 23 - . have coordinate values according to the Ontario Coordinate System) or uncoordinated (that is, the points will be given their linear values from the field). His work orders come from his Supervisor Plans (Mr. R. Muraschuk), a Supervisor Surveys, the Surveys and Scheduling Coordinator (Mr. D. Riseboro), from outside con- sultants engaged by the Ministry or, on occasion, from an Examiner Plans (Mr. S. Hedrik). He may also be asked to do revisions, calculation of alignments, design, field layouts, and curve layouts. The testimony at our hearings discussed a-k some length the nianner in which Mr. Cutrone goes about satisfying the work orders. I have reviewed this evidence and have concluded that it is unnecessary to rehearse it here. There is no doubt that Mr. Cutrone is responsible for the most difficult work of the type that he does. We heard no evidence of any more complex or difficult engineering plans than the ones which Mr. Cutrone handles. His work involves extensive use of the computer. He is familiar with various pieces of hardware and employs ICES COGO, HORvER, LEPLOT, MTC COGO, CONVER (used for con- versions from one measurement system to another), and TSO/SPF (which is Time Sharing Option/Structured Programing Facility, _: used for editing data and other purposes).~ The computer has not changed the type of work done, but has made the prepar- ation of plans simpler. We heard the evidence of Mr. A. Komorowsky, the man who developed most of the Ministry4s . software, and his testimony confirmed this as well as making clear the high degree of technical knowledge needed to use the programs. With respect to the Class Standard for Drafter 3, Mr. Cutrone suggested that he fit within the first paragraph of the Standard because on occasion he will give work orders to Drafter 2's and will supervise the work as it progre'sses. He acknowledged that he does not supervise a work unit, but he does supervise the work order itself. Concerning the second parayraph'in the opening of .> the Standard, Mr. Cutrone feels that he fits both sentences because he does highly technical design drafting, and has done highly technical survey drafting for the senior survey officials. He considers‘his work to involve "design" be- cause he creates alignments for interchanges. However, Mr. Byblow was clear that, in his view, no "design" work is done by the Senior Technician Plans because "design" involves the creation of something new ,(preparing the concept, allowing for the-~stresses and structural elements,~ etc.) and his Section doesn't do this. It is the Planning and Design Section, or the Structural Section, which "designs".' He acknowledged that Mr. Cutrone did geometric work for layout purposes, but insisted that this was not "design" work.. Mr. Cutrone's work provides the base map on which the new fea- ture will be placed. As well, he suggested that Mr. Cutrone did not report to "senior survey officials", but to persons !$ lower in the hierarchy. In his view, "senior survey offi- cials" means at least the Senior Supervisor Plans (Mr. 'J. Christie), who is an Ontario Land Surveyor. Other "senior survey officials" would be found in the Surveys and Plans Office at Head Office, such as the Manager, Chief Surveyor, Head of the Aerial Survey Section and perhaps the Deputy Chief Surveyor (this latter is a lower rank than Mr. Byblow) With respect to the "Characteristic Duties", he indicated that he did interpret and clarify field notes search data (dontrol monuments and PI co- ordinate notes) .design criteria and engineering specifica- tions (but qualified this by saying that he didn't design specifications, but rather calculated them) outline or compile reference material assign duties and specify requirements (this is related to the supervision of the work orders discussed above) .- supply technical guidance make a detailed check on completed work consult with field and engineering staff on technical matters direct the operation of coding and decoding information for survey calculations made by electronic computer (though for the most part he does his own computer work, on occasion he directs others who don't know the computer programs)~. He does no "sub-professional design work", hence the whole second paragraph in this part of the Standard does not apply. With respect to the emphasized "-Duties", he in- - 26 - dicated that he did prepare drawings, detailinys and speci- fications as assigned for construction projects. Finally, he has been involved in training people in computer pro- grams. NO question is raised concerning his qualifica- tions for the position of Drafter 3, so it is unnecessary to deal with the evidence on this matter.~< Mr. Cutrone was then asked to comment on the work described in the Position Specification for Survey Compu- ' tation Technologist--(which is classified Drafter 3). This Position Specification includes, inter alia: 7. SUMMARY OF POSITION: To perform the complex, intricate, technical com- putations required to produce co-ordinate values for horizontal control survey stations ori the Ontario Co-ordinate System and to produce eleva- tions for vertical control stations (bench marks) all in accordance with,accuracy standards of Geodetic Survey of Canada. To review control survey returns and to check work assignments. 8. DUTIES AND RESPONSIBILITIES: 1. 65% Performs the complex, intricate, tech- nical computations required to produce co-ordinate values for 2nd and 3rd orderhorizontal control survey stations on the Ontario Co-ordinate System to Geodetic Survey of Canada standards of accuracy by performing such tasks as:- pre-analyzing proposed networks using a computer program to determine strength of figure and recommending necessary changes; examining surveyor's field notes and returns and deciding on the most suitable method of computation; coding and decoding data for processing, using I.B.M. computer and several control survey programs: - 27 - determining the method of distributing errors; evaluating results, recognizing design weak- nesses, locating field discrepancies and recommending additional field work when re- quired. 2. 15% Checks and finalizes values (elevations) determined in the field to 1st order Geodetic Survey of Canada standards for newly established bench marks, by performing such tasks as:- mathematically checking backsights, fore- sights, mean differences, intervals and sums of intervals in each Field Book; checking the.summary, elimination, adjustment and orthometric and dynamic correction sheets and adding the final adjusted elevations to the Bench Mark Description Sheets; preparing input for' computer for ,adjustment of separate.loops between fixed bench marks, and checking computer output; drawi3g precise level route maps for dis- tribution, showing location of Ministry Routes; updating Geodetic Survey of Canada Vertical Control Index Maps for reference purposes, showing all Federal and Provincial Routes. 3. 15% Checks work assignments comple~ted by Survey Computation Technician, accepting respon- sibility for completeness and mathematical ac- curacy. 4. 5% Assists the Supervisor when required, by providing technical guidance to subordinate staff Performs other related dutie.s as assigned. 9. WORKING CONDITIONS: Normal drafting office conditions. Work requires constant visual attention with extended periods of mental concentration. 10. WORXING RELATIONSHIPS WITH THOSE SUPERVISED AND OTHERS: With Survey Computation Technician - supplies technical guidance in respect to methods and pro- cedures for advanced computations, assists with other training, checks completed assignments. - Ld - With others Maintains good working relationship. 11. EQUIPMENT USED: Common desk tools, drafting instruments, calcu- lators, computer terminal, geodetic tables (e.g. Universal Transverse Mercator Grid) trigonometric tables, Horizontal Control Survey Precis and publications on Geodesy for reference. 13. WORX COMPLEXITIES: (a) VARIETY: Performing complex, intricate, technical computations using ele&-ronic desk calculator or the services of I.B';M. Electronic Computer. Reviewing Control survey field returns for adherence to Geodetic Survey of Canada stan- dards. Checking work assignments for Survey Computation Technician, supplying technical yui- dance, cla~rifying problems and assisting with training. (b) _- DIFFICULTY: Ensuring the accuracy of all completed assignments. Determining reasons for unsatisfactory mathematical adjustments - input errors, design problems, field errors, incompati- bility of adjacent networks. Working to very high and precise standards of accuracy: (c) CHOICE OF ACTIdN: Initiative and judyement must be shown in assessing results throughout the processing stages, and in determining the reason for any discrepancies in the adjustment. 14. IMPORTANCE OF ERRORS: Errors in calculation of horizontal or vertical control values would cause confusion to personnel within this Ministry-and other Ministries and agencies, who depend on the accuracy of station values as a basis for their purposes and would cause lack of confidence by Geodetic Survey of. Canada in the acceptability of the Ministry's i product and time loss and considerable expense! 15: CONTROL BY SUPERVISION: Work performed under general supervision. Super- :~ visor provides advice or decision in respect tc unusual or 'unprecedented problems. Completed assignments accepted by Supervisor as accurate and valid. 16. CONTROL BY PROCEDURE: Governed by Horizontal and Vertical Control Survey Precis, Geodetic Survey of Canada and section control survey standards, methods and procedures, Electronic Computer Programs (e.g. GALS and COSMOS). Concerning paragraph 7 ("Summary of Position"), Mr. Cutrone said that he too produced coordinate values, and, though they do not form part of the Ontario Coordinate System, he had to work- just as accurately as the Survey Computation Technologist. He suggested that accuracy is a question of the number of decimal places used in the final result, and there is' no greater difficulty in working to "second order" instead of "third order".~ .However, Mr. Byblow indicated that the degree of accuracy depends.on the instruments used, the survey mathod used, the length of sights, the balancing oft sights, and other field practices. On the other hand, Mr. R. Clarke, a Survey Computation Technologist who spends all his time calculating "second" and "third order" control stations, testified~ that the office procedure is the same for both orders, only the field '. practicesvary. It wou1.d seem that the office procedure is roughly the same, except that the draftsman must ensure that the higher standards were maintained in the field. Concerning paragraph 8 ("Duties and Responsi- bilities"), he said that he performed the work described in sub-paragraphs 1 and 4. However, 95% of his time was corn-. puter-related. - 30 - He said that his "Working Conditions" (paragraph 9) I "Working Relationships'! (paragraph loj, and "Equipment Used" (paragraph ll), was essentially the same as described in this Position Specification. The same knowledge .is required for his job as for the Survey Computation Technologist. With respect to paragraph 13 ("Work Complexities"), Mr. Cutrone said that his own job had the same complexities, but acknowledged that the SCT works to a- higher degree of accuracy in checking-"first~order" points. Finally, he suggested that the "Importance of Errors" (paragraph 14), "Control of Supervision" (paragraph 15), and "Control by Procedure" (paragraph 161, were the same in the two jobs. .~. In cross-examination, Mr. Cutrone was asked about the Class Standard for Drafter 2. He said that his work was "highly technical" rather than "complex", as set out in the "Class Definitions". Apart from this, he agreed that the general definition covered his job. Concerning the "Characteristic Duties", he said that the first sentence of the first paragraph was not en- tirely correct for him because he didn't draft. The second ~. sentence of the first paragraph was applicable, except for - 31 - the references to plotting and checking detailed survey plans from field notes and checking azimuth calculations. The second paragraph was largely not applicable to him. The third paragraph was applicable, but not the fourth Andy fifth. He was then asked~,about the Position Specification for Senior Technician Plans (Exhibit'8). It reads in part: 2. PURPOSE OF POSITION ~(Why does this position exist? State Goals Objectives etc.). To perform trigonometrical and computer calcu- lations related to legal and engineeri,ng surveys, and to prepare and check all types of legal plans for registration and engineering plans and pro-. files for pre-contract engineering. 3. SUMMARY OF DUTIES AND RESPONSIBILITIES TIndicate oercentaqe of time spent on each significant function.' Indicate scope, equip- ment; working conditions usual features etc . ) . ,:i._~,~~ 1 : Calculating complex mathematical problems re- lated to coordinated field layout and preparation of engineering and legal plans by: interpreting and applying the principles of geometry, trigonometry, surveying, and the Ontario Coordinate System in the computation of horizontal and vertical alignments, curve systems, convergence, property limits and .. areas with the use of electronic calculators, planimeters, and mathematical and curve .i~ tables. 2.. Computer processing of survey data through the Time Sharing system in T.S.O. command language for the computation and/or plotting of engineering. alignments and plates, legal plans, charts and forms by the use of various computer programs (eg. ICESCOGO, MTCCOGO, LEPLOT, HORVER, CONVER, LSAC, etc.) by: preparing input data in accordance with the various computer program specifications and instructions: processing input data through the T.S.O. terminal: reviewing, interpreting, adjusting and cor- recting computer output to meet program requirements and survey and plan standards; adapting to frequently changing computer/user technology and methodology. 3. Interpreting and applying titie search data to confirm and determine the interests in land including the lastregistered pwners, easements, rights-of-way, encumbrances and clouds one title by: comparing searches and survey returns to determine if overlaps or gaps of title exist, either documentary or physical, and resolving problem areas with supervisor and surveyor; checking & applying all available sources of relevant information including: township plans, original township survey notes, P- plans field notes, title searches and calcu- lation files, A-plans, L-plans, registered plans of subdivision, engineering plans, evidence files, by-law files, plans of a ~variety of public utilities and agencies, municipal surveys, correspondence, private surveyor's plans, property sale files, micro- filmed documents, Kardex files, reference manuals, regional and Ministry directives, aerial photographs, bridge plans etc. through an application of the principles of Real Property Law. 4. Drafting and preparing approximately 12 types of engineering and 24 types of legal survey plans in accordance with Ministry standards and require- ments, Statutes,and Regulations such as The Sur- VeysAct, The Land Titles Act, The Registry Act, The Public Transportation and Highway Improvement Act, etc. by: preparing plans using drafting instruments and free handy or mechanical lettering or by computer plotting systems; checking survey field notes for accuracy and content, and interpreting for plan.compila- tion; applying alignments, rights-of-way, property reference, physical detail (surface and underground), coordinate data, profiles and level in data, drainage features, contours, complete reference data: - a3 - adapting to continually changing standards, statutes, regulations, and instructions; preparing new books in the Engineering and Title Record Plan (E.T.R.) format and main- taining the E.T.R. books and plates current by updating from as-constructed contract data, building permits from Districts, sales files from Property, and survey plans from outside agencies, for use by Planning and Design, Construction, Maintenance, Property, T.A.T.O.A., Legal Services, etc. tracing the various types of plans on linen or drafting fiim using the appropriate~special inks. 5. Checking all above plan types prepared by others to ensure correctness and conformance with the various Statutes, Regulations, etc. 6. reconciling discrepancies with Office and Field Supervisors. Other-duties.as required such as: preparing short-forms desciptions and complex metes and bounds descriptions for requesters or to accompany the various plan types; and interpreting and plotting complex metes and bounds descriptions obtained from the Re- gistry Office; preparing special Regional drafting require- ments as requested including traffic plans, soil profiles, geotechnical plans, local road plans, connecting link plans, etc.: investigating land titles first application plans forwarded from.the Ministry of Consumer and Commercial Relations and reporting findings to Supervisor; I assisting in training junior members, peer groups, and students upon request; liaising with users: Office and field staff, consultants, requestors, etc.. Mr. Cutrone said that the "Purpose of Position" did not apply to his job. Same of the first sub-paragraph in the "Summary of Duties and Responsibilities" applied, but none of the other four sub-paragraphs applied. Rather, his i. - 34 - job involved almost entirely (90% of his time) the pre- paration of Horizontal and Vertical plates and field lay- outs. There was some dispute concerning the nature of the supervision to which Mr. Cutrone is subject, and the nature of his relationship with Mr. Hedrik, an Examiner Plans. In my view, the evidence indicates that he is super- vised by his Supervisor Plans, and not the Examiner Plans. Mr. Hedrik is not in fact "above" Mr. CutrOne. The evidence of Mr. Byblow, the Head of the Surveys and Plans Section, and Mr. Muraschuk, MY. Cutrone's Supervisor Plans, was that by and 1arge~Mr.~ Cutrone related to senior management through Mr. Hedrik. However, in my view, neither of these witnesses was really"familiar with the day-to-day activities of Mr. Cutrone and the nature of his real working relationships. The totality of the evidence indicates that Mr. Cutrone gets much of his work directly from other sources than Mr. Hedrik, and he relates directly to others as well in the performance of his tasks. These working relationships have developed because,of Mr. Cutrone's special expertise in the use of the computer and the preparation of Horizontal and Vertical plates. EVIDENCE CONCERNING A PARTICULAR DRAFTE~R 3 We had- the benefit of the testimony of Mr. R. Clarke, who is a Survey Computation Technologist (classified - 35 - asa Drafter 3) at Head Office. His work involves the esta- biishment of horizontal and vertical control points which become part of the Ontario Coordinates System (-for hori- zontal control), or the MTC Precise Level Routes (for ver- tical control). The bulk of his own work is on horizontal control stations. The job itself requires him to take the field notes and calculate the coordinate values for "second" and "third order" control stations, making use of a number of computer programs. He does not use the same programs as are T&ted by Messrs. Brick and Cutrone. e He says that 90-95% of his time is spent calculating values. His work does not involve the application of the control points to any par- ._.:i..:. i : titular project. Indeed, he does notknow why he is asked to calculate any particular value, and knows nothing about Horizontal and Vertical plates. Prior. to bec0ming.a Survey Computation Technolo- gist, he was a Drafter 2 and did legal survey plans. He I says that his previous work was a comple.tely different job from his current work. He appears to have no real supervisory functions. - 36 - ARGUMENTS OF THE PARTIES a. For the Union IMr . Paliare accepted the grievors' onus to esta- blish that the job they do is within the words of the higher classification, or that their duties are the same as someone within the more senior classification. He referred the Board to Montague (110/78), where the Board said (at pages 5-6): "The task of this Board in classification grievances is to assess whether the position has been improperly classified according to the class standards %stablished by the government's classi- fication system. fin deciding such grievances, the Board considers not only whether the grievor's job cones'in within the words of the higher class standard which he or she seeks, but also whether the grievor's duties are the same as those of an employee within the more senior classification sought (Re Lynch, 43/77; Re Rounding, 18/75; Re Wheeler, 166/78). A recent award by another panel of this Board elaborated on this second line of enquiry in McCourt and Ministry of the Attorney General, i98/78. If another employee doing work identical to the grievor is classified at a higher grade, it may indicate that the employer's actual classi- fication practices differ from the written clas- sification standards. It should be noted, how- ever, that the concern is with the proper appli- cation of the employer's classification system. Therefore, it may~not be conclusive for a grievor to show that one employee in a higher classi- .~ fication performs the same tasks, for it nay be that such an employee has been improperly clas- sified. In dealinu with awwlications under Section 17(2) (b) of the C&n Employees Collec- tive Bargaining Act, s-0. 1972 c. 67, or griev- ance recardins classification under the collective agreement, the Board is not directly concerned with discrimination between employees in the application of the classification system, unless the differential-treatment demonstrates a change in the classification system from the written - 37 - standards. The Board's concern is with the ques- tion of whether the qrievor's job has been im- properly c~lassified, when that job is measured against absolute standards. Often, the descrip- tion of jobs, of employees in the higher classi- fication will only serve to illustrate the ap- plication to particular cases of what are neces- sarily generally worded standards." And to Hooper (47/77), wherein the Board dealt with the pro- blem of a job which does not fit neatly into either the qrievor's existing classification, or the claimed higher classification. At page 14, we find: "As will be obvious, virtually none of these duties fit comfortably into either the Class Definitions or Characteristic Dutieg'of either of the Durchasing Officer levels at issue. As we see our task, therefore, we must, by analogy to the responsibility borne, the supervision provided, the supervisory duties assigned and the functions performed, determine which of the two levels best accommodates the qrievor's position. We think this can best be done by identifying the way.s in which the two classification levels differ." As well, Hooper deals with the matter of supervision as follows (at page 16): "The Employer argues that the qrievor is under the general supervision of his supervisor, but that supervisor., in his own evidence, says that he basically leaves the qrievor to complete his assignments on his own. The supervisor is'&t?% specialist in the qrievor's area of technical expertise, and so it is difficult to imagine that the "supervision" could be anything but general discretion. (~sic)' - Mr. Paliare argued that these earlier decisions of this Board should guide us rather than decisions from the private sector. It was then suggested that Mr. Brick could satisfy the need to come within the words of the higher classifica- tion, and that Mr. CuWone could satisfy both this test and the comparison with someone in the higher CIassification, because his job is "sufficiently similar" to that of Mr. Clarke. In his overview of the evidence, Mr. Paliare sug- gested that the Employer's witnesses tried to create the impression that Xessrs. Brick and Cutrone did work which was routine and straight-forward, a notch or two above "child's play". Though he acknowledged that there was agreement that' both qrievors are among the best in the-department, they get the most difficult work and are relied on by the employer. L. " _,~, .- However, he asked the Board to remember that some of their projects take weeks or months to complete, and no one suq- yested that their time was poorly spent. He commented on particular witnesses and pieces of evidence, and these comments have been reviewed carefully. They need not be repeated here. Concerning the Class' Standard for Drafter 3, he began by indicating that~the Board must read the word "Supervisory" in light of the fact that this is not a managerial position, but rather one within the bargaining unit. Both grievors rely primarily on that part of the Class Definition which reads: "Also included are positipns where the supervisory responsibilities are secondary to highly technical survey drafting performed.for senior survey officials." I .~: .: - 39 - : i Though Mr. Cutrone may fit also under other parts of the general definition. With respect to the "Characteristic Duties", it is not necessary to do all of them. While ne,ither grievor supervises groups of em- ployees, both may, depending'on the workload, give some work to other employees and supervise the work order as it pro- gresses. He argued.$hat "senior survey.officials" includes the Supervisor Plans, Senior ~Supervisor Plans and the Survey _. and Schedule Coordinator. It is not necessary to do the work directly for such officials, nor must such officials be Ontario Land Surveycrs. He pointed out.that, in the Class Standard for Senior Drafter, the Standard speaks of "re- porting directly". For Mr. Cutrone, he,argued that the grievor also did supervisory drafting work because he is the expert on Horizontal and Vertical sheets, and does supervise others in doing them. He also does "highly technical sub-professional ,-t design drafting under the direction of an engineer, architect or designer" when he is called on to do design drawings under the direct~ion of outside consultants. ,~ -,- 7 And, with respect to the argument that Mr. Cutrone does the same job as a particular Drafter 3, Rounding points Gut that the jobs must be "virtually identical" (at page 4): II . . . . . . when faced with a claim that a position is improperly classified, and assuming those clas- sifications conform to the general law of this jurisdiction, this Board is limited by the express provisions of legislation to determining whether or not one the system employed and the classi- fications struck, the employee in question is actually performing the duties assigned to that . .: position or even assuming that to be the case, whether that employee is nevertheless being re- quired to perform virtually the identical duties which, the class standard notwithstanding, are being performed by employees whose position has been included in some other more senior classi- fication. In short, it would, under the,present statutory scheme, only be in those or analagous instances that an employee's grievance under s. 17(2>(a) would be entitled to succeed." And .the same point is made in McCourt (198/78). The Board in Rounding also commented on our juris- diction (at pages 4-S): "In the result it is simply of no relevance to a determination that is being made under s. 17(2)(a) that this Board is, or indeed the grievors are, firmly convinced that there are not suf- ficient differences between tGo classifications to warrant their separate identities or that the difference in wages that are appended to each do not fairly or accurdtely reflect the differences in skill and job.duties that- are required in each. Rather, and subject to such classifications con- forming to the general law of this jurisdiction, to repeat, the former is by virtue of s. 17(l) (a! of the Act within the. exclusive prerogative of management while the latter is a matter which may properly be the subject of negotiation between the parties;" In Thompson (7/76) , the Board-found that the griever was not improperly classified though for half her Inconclusion, he asked this Board to uphold the grievances as of the date of the grievances, and to remain seized in the matter of compensation. b. For the Employer Mr. Kenny, .on behalf of the Employer, submitted that this Board should follow the jurisprudence concerning classification in the private sector. He referred us to .~; Re Franklin Manufacturinq Co. (Canada) Ltd. and Interna- _tional Association of Machinists, Lodge 1246 (197j)., 4 -- L.A.C. (2d) 201 (Brown), wherein the board of arbitration said (at page 205): .m "The burden of proof in cases of this nature was referred to by Professor Adell in the Dehavilland Aircraft Co. and U.A.W. (January, 1970~), unreported, as follows: I accept the burden is on the griever in cases of this sort to prove to be (sic) civil standard that the grievor is perfor=g the significant job duties of a higher. classi- fication a majority of his time, and I also accept that the character of the work actu- ally performed is the essential matter to be evaluated in a grievance of this nature. For further reference see also a decision of Judge Cross in Dehavilland Aircraft of Canada and U.A.W. (September, 1959) [unreported] wherein it was stated: "The classification must be taken as a whole and no fraction of it can be extracted for the-purpose of.~'obtaining a higher classification when a lower classification is comprehensive enough to cover the job which is being done." And to Re U.S.W., Local 2900, and John Inglis Ltd. (1964), 15 L.A.C. 126 (Macdonald) [at p. 1271: "A grievor must n,ot only establish that his ability and work are beyond his present job description but he must bring himself squarely within the description of the classification he seeks, both as to ability' and responsibility." tie argued that, for the grievances to succeed, we must find the grievors to be "improperly classified" -- that' is, the Class Standard~for Drafter 2 does not fit their responsi- bilities. It is necessary that they do the "significant" parts of the job of Drafter 3. He went own to argue that, in order to reclassify ~. the grievors, we must find that they normally do the "core" work of the higher, classification,. It is not sufficient that they have done some of the 'Drafter 3 duties on a regular basis, nor is it sufficient if they performed the . whole job of a Drafter 3 occasionally. In support of these ..> propositions, he cited _Re Mattabi Mines Ltd. and United Steelworkers (1973), 2 L.A.C. (2d) 257 (Rayner), at pages 260-l: . aHowever,. if the employee's grievance iS to suc- ceed, he must show on the balance of probabilities that the classification of the company was, in fact, unjust. Several cases have indicated that the burden- of proof is clearly ,on the employee. See Re U.A.W., Local 112, and De Havilland Air- craft of' Canada Ltd; (1967), 18 L.A.C. 249 (Reville): Re U.E.W., Local 512, and Square D Co. Canada Ltd. (1964), 15 L.A.C. 159 (Arthurs); Re U.S.W., Local. 1005, and Steel Co.r+of Canada Ltd. [1961), 12 L;A.C. 129 (Anderson). Perhaps the clearest statement of the requirements to be met before the grievance can succeed is to be found in Re U.S.W., Local 4697, and Dorr-Oliver-Long Ltd. (1968), 19 L.A.C. 397.a decision of Mr. Weather,ill. In the case the headnote states: In dismissing the grievance the board, .held, in cases of this type, the grievor must clearly establish that his ability and work are beyond his present job description and he must show that his ability and responsibility put him within the description of the clas- sification he seeks. The major difficulty in the present case is that the content of each job classification was not set out in terms of any job description that had been negotiated between the parties. Two somewhat different approaches have been enunciated when this problem rises. In Union Carbide Nuclear Co. and the Vnited Mines Workers (1961) 61-3 C.C.H. A.R.B. para. 8815 (Seligson), it was'decided that before an employee in a lower rate of classification could be said to.be doing the work of a higher classification he must be engaged in work that forms the central core of the higher ra,ted classification and not just an iso- lated marginal relatively insignificant duty. In Re Sudbury Mine, Mill & Smelter Workers' Union and Falconbridge Nickel Mines Ltd. (1969), 20 L.A.C. 45, Professor P.C. Weiler referred to the test enunicated by Judge Little in the Deschenes case in 1957 which was that the test as to the work of an occupational clas,sification not pre-' vi&sly defined must be'the type of work normally done by ths members of that class from day to day' rather than the particular task which they do from hour to hour or minute to minute on a particular day .'I And to the same effect, Re Arsenault and Lanteigne~and the Queen in Right of New Brunswick (1980), 27 L.A.C. (2d) 358 (Kuttner) , at pages 360-l. In the jurisprudence of this Board, ,Rounding (18/75) adopted the concept of the "whole.job" when, at pages 6-7., the Board said: I "Indeed the same could be said of much of the evidence adduced by the grievors which established a close similarity of functions between the Seam- stress and Tailor classifications. Although obviously relevant to a claim, made in negotia- tions that the grievors should be pa3 a wage wm more closely conforms to the Tailor clas- sification, that evidence will not support the conclusion that these grievors should be clas- sified as tailors where other evidence reveals that there are other skills and duties required of the tailor which these grievors do not and have not performed." (Emphasis in original) - 44 - time she perfcrmed the work done by higher-payed employees. The qrievance failed because 20% of the grievor's time was spent doing work outside the better paying classification 2 and falling within her own classification. In Lynch (43/77~), the Board dealt with the problem of overlapping duties. The grievor's job could have been classifisd either in the higher~~or existing classification, however she succeeded because the evidence showed that another employee doing the same work was in the higher classificstion. And in Edwards and Moloney (11/78), the Board said (at pages 'LO-11): '~~ "Job classifications often contain over- lapping duties, for it is difficult to design x%atertiqht job compartments. This makes the task o_' classification more difficult, although it, does not necessarily mean that the grievors, because they perform many of the same tasks of the senior classification. are entitled to that senior clas- s.i,fication '(L.C.B.0. and Liquor Control Board, 3:i,'77 at 12; Windsor P~ublic Utilities Commission (:!~.75), 7 L.A.C. It is ,particularly.difficult to design clas- sii'.cations for jobs involving paraprofessionals, th+x situation in the present case. Routine jobs on i production line can often be distinguished by brightly drawn lines,. with the job of a person resxnsible for the operation of a' punch press eas'.:ly distinguished from the job of the person I kee;>:.ng him supplied with material. In contrast, with paraprofessionals; and particularly with regard ~to those providing services to other peopie, as in the welfare and medical fields, it is often diff:zult to draw bright lines between different leve-s of jobs. The tasks performed by individ- uals :n different classifications may appear very simiizr, yet it must be kept in mind that the clas:i.fications have been designed for a pur- - as - pose - whether to reflect different emphases with regard to the similar tasks,, or to reflect greater discretion, or responsibility by those in one of the classifications, or to reflect the higher qualifications demanded of those in the more senior classification (the aim being to preserve the morale and status concerns of those more highly qualified in a particular field of en- deavour) . An arbitration board must therefore be particularly careful in assessing classification grievances where there is 'extensive overlap in .job duties, so that a decision does not interfere with the overall aims of the classification system. The onus is on the grievor to show that he falls within the higher classification, and where there is extensive overlap in job duties, he should show that his job, in practice, is the same~as that performed by a person properly within the higher classification." Mr. Renny suggested that the Board was in error in ,.% Hooper (47/77) in looking for the "best fit". It is neces- sary.~to be wrongly classified in the existing classification and to be properly classified in the higher classification. Turning to the Standards for the Draftsmen Series, Mr. Kenny looked first at the "AllocationFactors!'.,and emphasized particularly the last sentence in number 2 -- "Above Draftsman 1, skill level is normally significant only I in combination with other factors". He argued that a Drafter 3 exercises no greater measure of skill than a Drafter 2, but has additional responsibilities.which warrant the higher classification. Allocation Factor 3, concerning "specialized knowledge of pertinent legislation, survey practice, basic engineering pririciples, and knowledge of departmental stan- dards, procedures and policies", suggests no difference between the two classifications. The Drafter 2 must possess this knowledge. .Ulocation Factor 5 speaks of supervisory re- sponsibilities, and indicates that one must take into ac- count the "scope, complexity and importance of the drafting function supervised, the number and level of those positions supervised, the degree of responsibility assumed for com- peted work'and for the training of junior staff". .,. He argued then that we must find the significant differences between -Ehe classifications of Drafter' 2.and Drafter 3. The general definitions for the Tracer, Dr~after 1 and Drafter 2 show that these positions involve "hands-on" 3::;:“.;drafting work. On the other hand, the Drafter 3 involves supervision and is no longer basically a "hands-on" drafting job. The Drafter 2 does the complex drafting work. It is the top of the range for "hands-on" work. The "Class Definition". for Drafter 3 says that "This is normally responsible.supervisory drafting work." Messrs. ~Brick and Cutrone are not unusual. There are ~37 Senior Technician Plans in the Central Regicn, and other regions have more STP's. If they were all to bedome Drafter 3's, then the Drafter 3 position would become a "hands-on" job,' no longer normally responsible supervisory work. I - 47 - There are three types of Drafter 3 -- a. "responsible supervisory drafting work", b. "highly technical sub-professional design drafting under the direction of an engineer, architect or designer, where supervisory re- sponsibilities are limited or non-existent" . (emphasis in original), - C. "where supervisory responsibilities are secondary to highly technical surveydrafting .performed for senior survey officials" (empha- sis added). The second type.is not performed in the Surveys and Plans Section, in spite of Mr. Cutrone's suggestion that he does this kind of work. And the third type involves supervisory responsibilities, but they are secondary. It is only the second type which may involve no supervisory responsibilities at all. Mr. Kenny then went through the work of the grie- vors and argued that they fall squarely-within the Drafter 2 classification and do only the overlapping duties of the Drafter 3. Neither of them works for "senior survey of- ficials". Even if Mr. Christie, the Senior Supervisor Plans, could be considered such an official, they do not work for him, but rather for their Examiner Plans and pos- sibly for the Supervisor Plans. This last sentence in the "Class Definition" for the Drafter 3 must refer t0.a direct reporting function. The introduction of the computer has not changed the job functions of the two grievors, it has simply changed the way in which the functions are accomplished.. Mr. Kenny i - 48 - referred the Board to Re Wilson Concrete Ltd. and United Cement, Lime and Gypsum Workers, Local 424 (1973), 3 L.A.C. (2d) 32 (Weatherill), wherein it was decided that the intro- duction of a new crane did not affect the classification of the persons who used a crane to perform certain tasks. He acknowledged that both grievors do very complex work, and may be entitled to more money for their work, given that they are both at the top of the salary range fo:: Drafter 2. However, this does not affect their classi- fication, which must be done according to Standards esta- blished by the Employer, pursuant to legislative authority. .,. CONCLUSIONS It is clear that the Employer has the right to es- tablish the Class Standards and the grievors must bear the burden of showing that they are improperly classified. In my view, the jurisprudence in the private sector and in this Board does not vary significiantly. When this Board said ,in Montague (referred to above in the Union's argument) that the first consideration is"whether the grievor's job comes ~.". in within the words of the higher class standard", I don't think that anything different is meant from the language of :- ._ Professor Adell in Dehavilland Aircraft (quoted above in the extract from Re Franklin found in the argument for the Employer), when he said that we must look at '-the siqnifi- cant job duties of a higher classification", and that the - 49 - qrievor must perform those duties "a majority of his time". Furthermore, this Board's decisions do not differ from Judge Cross in Dehavilland Aircraft (also quoted in the extract from Re Franklin above), when he said that: "The classification must be taken as a whole for the purpose of obtaining a higher classification when a lower Classification is comprehensive enough to cover the job which is being done." (emphasis added) Nor have we differed from Macdonald in Re U.S.W. (also quoted in the extract from Re Franklin), when he said: "A grievor must not only establish that his ability and work are beyond his present job description but he must bring himself squarely within the description of the classification he seeks, both as to ability and respons'ibility." The various decision say the same thing in different ways. There has been no conscious move in this Board to part from the jurisprudence in the private sector, nor has this oc- curred by accident. The most that may.be said is that the Board in Hooper (referred to above in the argument for the Union) varied from this jurisprudence somewhat in seeking the "best fit". However, the Board there was faced with a si.t,uation where neither Class Standard really fit the qrievor's job comfortably, which~is an unusual.situation. Our task is to decide first whether or not the grievors are properly classified in their existing zlassi- fication. If they are not, then we must go on to decide whether they would be properly classified in the classi- fication which they seek. We must look at the Class Stan- dards a.s a whole, and not classify according to some peri- s . - 50 - pheral part of the duties of the classification. Obviously not all employees in a class will do all the duties men- tioned in the Standard, but one must be doing the essential duties on a regular basis in order to be classified in a particular classification.' We must also consider the way that the Employer has classified persons holding the higher classification, in ,order to understand the meaning of the words used where there is significant room for varied in- terpretation, or where it can be~shown that the Employer's actual classification system differs from the written one. Bearing th;.s in mind, there are some general con- clusions concerning the grievances in this case. I shall be somewhat fuller than would be necessary just for the griev- ances of Messrs. Brici; and Cutrone, because this interim award may assist the parties to settle the rest of the grievances. Firstly, from Drafter 2 up, there is contemplated a mix of "hands-on" drafting and supervision. ?he Drafter 2 does "complex drafting work", but he may also "supervise a small group of draftsmen performing moderately complex drafting work". The Drafter 3 does "responsible supervisory drafting work", but he may also do, "highly technical sub- professional design drafting" or "highly technical survey drafting". The Drafter 3's supervisory responsibilities are over "a medium-sized group of draftsmen performing complex drafting or design drafting". Above this, we have the . - 51 - Senior Drafter who does "highly responsible supervisory drafting work", over "a large group of draftsmen performing important and complex drafting work". Secondly, the natilre of the supervisory work per- formed by these classifications must be less than managerial, because all of these employees are in the bargaining unit. Hence, we are talking here of overseeing the technical aspects of the work, rather than full supervision. '. Thirdly, it is clearly possible to be a Drafter 3 without any real supervisory functions. The language of the ..% Class Standard contemplates this, and so does the Employer's practices. Mr. Clarke is a Drafter 3 and does no super- vising. Indeed, he does no drafting either! He calculates control points which are used by draftsmen and surveyors in the preparation of plans. In my view, his evidence is useful only to indicate that a Drafter 3 in practice may do no supervising. His job is not sufficiently similar at~all to Mr. Cutrone's (and no suggestion was made that it re- I sembles the job of Mr. Brick) to assist in.the classifi- ~ cation of Mr. Cutrone. Fourthly, there does appear to be a difference in the type of drafting work performed by a Drafter 2 and by a Drafter 3. The former does "complex" draf'oing work. The latter does "highly technical" work. What is the difference between these two types? The Concise Oxford English Dic- tionary defines "complex" as follows: ,. Q-1 "Consisting of parts, composite; complicated..." And for "technical" we find: "of or in a particular art, science, handicraft, etc. . . " Hence, "complex" drafting work would be complicated drafting work. "Highly technical" drafting work would require con- siderable skill in the art and science of drafting. "Complex'" work may be complicated but not require such a high degree of technical expertise. And "highly technical" work may require great technical expertise but not be terribly com- plicated. "Complexity" could result from a number of fac- tors - technical difficulty, legal obscurity, high popula- tion density, and so on. However, the Class Standard for m Drafter 2, in the,"Characteristic Duties" speaks of "the y.. more difficult and important survey plans" and calculating "difficult compound and reverse curves." Thus, even the Drafter 2 must deal with significant technical matters. In my view, looking at the.relevant Class Standards as a whole, and in light of the evidence concerning the jobs done by the two grievors, for draftsmen "complexity" and "technicality" are almost inextricably intertwined. The drafter solves the / complications of his job through the aid of technical expertise. In particular, he uses the computer and Some of the programs require a high degree of technical knowledge to use them properly. If there is a distinction between the drafting work done by a Drafter 2 and a Drafter 3, its is that~the Drafter 3 works at the upper limit of technicality. Our evidence showed clearly that both grievors worked at this limit. - 53 - t Fifthly, the Drafter 3 does his highly technical work for "senior survey officials", and the term "senior survey officials" is difficult to define. We heard no evidence about drafting work done directly for "senior survey officials" in the sense of that term suggested by Mr. Byblow and other Employer witnesses. The "Class Definition" for Drafter 3 must be read together with the "Characteristic Duties". In this latter section of the Standard, in my view, the first paragraph deals entirely with elements of a supervisory, position. The "highly technical survey drafting performed for senior survey officals" of the "Definition", is reflected in "Per~_form special ~investigatioaal work for senior surveying staff on unique mapping problems relating to land titles". If this means that the special investi- gational work is assigned directly by the senior surveying staff, then as far as this Board knows, there is no such work done. If this is so, then "performed for senior survey officials" must mean work which is done by drafters at the request of senior survey officials , ,even though the request is filtered down through the hierarchy. Again, it bears repeating that we heard no evidence of any drafting work more.complex or technical than the work done by the two grievors. If'the best and most difficult work,is required by anyone, they do it. In this sense, they will be called on to-fulfil the work requested.by senior survey officials. Sixthly, if there is a distinction between the drafting work done by a Drafter 2 and a Drafter 3,.it in- valves the relative complexity and technicality of the work. Only a few drafters can do the "hiShly technical" work. If they all did it, then the work would be "technical" and not "highly technical". It is only the drafters at the top end of the "hands-on" work, who can be considered as doing the "highly technical" work. Seventhly, however; if a draftsman is to be clas- sified as a Drafter 3, without meeting the supervisory parts of the classification, he must do this "highly technical survey drafting performed for senior survey officials" most of his time. As.expVert as both Messrs. Brick and Cutrone are, the evidence does not indicate that this is the case. . . . . Eighthly, in my view, the Drafter 2 Class Standard can comfortably encompass the. jobs done by the two grievors. They do the "more difficult and important" survey plans and drawings. Ninethly, the "sub-professional design drafting" mentioned in the "Class Definition" for Drafter 3, is re- flected in the "Characteristic Duties" as follows: II . . . . use basic design principles to calculate the forces acting on structural components, movements of inertia, bending movements arid shear." Clearly, this work is not done in the Surveys land Plans Section, nor by,Mr. Cutrone. It requires technical ex- pertise which Mr. Cutrone does not possess. It involves the design of structural elements, not just their location on the ground. 2 ,i - 55 - AWARD Thus, I find that neither Mr. Brick nor Mr. Cutrone is improperly classified. It is for the Employer tom esta- blish the Cla$s Standards. This Board can do no more than decide whether or not an employee is properly classified according to the Employer's rules. This case took nearly a year to hear. I want to express a profound sense of gratitude to the parties for their cooperation-throughout, and to both counsel in pars., titular for a presentation which has assisted us greatly and very, very able argument by both which made the final de- cision terribly difficult to reach. We remain seized of the other grievances and wi~ll meet to hear them if the parties are unable to reach a settlement. - 56 - Dated at London, Ontario this 28th day of April, 1,082. "I dissent" (to follow) M.M. Perrin, Member ,..: )i:l > .;. 1. ROBERT BRICK 2. JOHN A. BIAFORE 3. ANTHONY B. BROW 4. FRANCIS CHIU 5. l?A?.IO CUTRONE 6. ALFRED0 DE CURTIS 7. IMOR DROZD 8. KARL H. EDLER 9. ERNST FEDDE 10. J. I. FRANIW 11. GERDA C. FRANKE 12. CECIL WILLIAM FRENCH 13. HARKISHAN S. GROVER 14. MARIO GUIDO 15. ROBERT D. hTNDE' 16. WILLIAM ROBERTSON KENNEDY 17.. GARTH KNAGGS 18. ROMAN KOROLUK 19. STEVE KOWAL 20. ARVID KRASTIN 21. H. M. MERCER 22. LUIS MURALL 23. R. A. OLLI,VIERRE 24. WILLIAM OSBORNE 25. SYDIR PIDHIRSKY 26 i; WAYNE ROBBINS 27. J. G. RESIDE 28. F. ROHO&lA?? 29. DIN0 P. SALVATORI 50. PAUL SA1\IBROOK 31. Ma4RIANNE SMITH 52. TERRY STEELE 33. B. STUKALO 34. R. TliO>lSO?I 35. B.YAZEJ1.M 56. J.OSEPH ?lIRXELLI LIST OF GRIEVORS I R c LIST OF EXHIBITS 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.; 14. 1s: 16. 17.. 18. 19. Collective Agreement between the Parties "Draftsman Series" "Drafter 2" "Draftsman 3" Organization Chart 06-50~ Organization Chart Revised 81-05 "Survey Computation Technologist" "Senior Technician Plans" "Examiner Plans" ' Employee Performance Report Field Notes of Survey Example of Plan Type "S" - Onondaqa Example of Plan Type "U" - Toronto Example of Plan Type "U" - Pelham Example of Plan Type "U" - Newcastle 1257 Example of Plan Type "U" - Newcastle 1258 ..d~ Example of Plan Type "U" - Newcastle 1259 Example of Plan Type "U" - Newcastle 1266 Example of Plan Type "U" - Newcastle 1270 20. Example of Plan Type "U" - Newcastle 1271 21 : Example of Plan Type "U" - Brantford 22. An example of HORVER .23. An example of HORVER input 24. An example of plan prepared by LEPLOT 25. An example of data input for LEPLOT 26. Reference Chart for'MTC COG0 27. Reference Chart for LEPLOT li 5 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. -39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. -5g- Reference Chart for HORVER Extracts from MTC COG0 Manual Extracts from ICES COG0 Manual Extracts from HORVER Manual Employee Performance Report, M. Cutrone H and V Sheet (coordinated) Extracts from "Hqrizontal Control Surveys Precis" Control Monument Record Extract from preliminary Field Survey Example of a design project Example of a design project Example of a.Survey Sketch (or Field layout) Computer input and a curve layout Example of fly-level notes Example of a sketch in response to a property request Example of final Field Survey Reference Chart for ICES COG0 A'leqal plan prepared by M. Cutrone Horizontal Control Survey Plan Memorandum from~,Supervisor Plans to.Supervisor Surveys I "Draftsman Series". Consolidation of Instructions for Examinations and Courses Examination, Draftsman 1, Trigonometry and Mensuration Class Salary Schedule Organizational Chart - Central Region - Executive Office Organizational Chart - Central Region - Engineering and R.O.W. Office Organizational Chart - Head Office - Surveys and Plans Office 55. Organizational Chart - Head Office - Surveys Section 56. Affidavit of J.H. Christie 57. In the matter of title to lands in the City of St. Catherines 58. Statutory Declaration of J.H. Christie 59. Plan re Darlington" 60. Plan re Newcastle > GSB 564/80 OPSEU (R. Brick et al) -- - and - The Crownin Right of Ontario Ministry of Transportation and Communications DISSENT I am unable to agree with the majority decision in this Casey; The facts are in the majority decision and will therefore not be repeated. At page 50, the Chairman states: If there is a distinction between the drafting work done by a Drafter 2 and a Drafter 3, it is that then Drafter 3 works at the upper limit of technicality. He then states: "our evidence showed clearly that both grievors worked, at this limit". At page 51, the Chair confirms that there was no evidence as to more complex/technical work being done by others when he states: Again, it.bears repeating that we heard no evidence of any drafting work more complex or technical than the work done by the two grievors. If the best and most difficult work is required of anyone, they do it. in this sense, they will be called-on to fulfil the work requested by, senior survey officials. From the above findings, and other comments up to thispoint, it appears t'he Chair agrees with the Union's submission& that: (a) the grievors do highly technical work; and (b) the'work is done for senior survey officials. However, at page 52 (item 7) the Chair then states that the evidence does not indicate that Brick and Cutrone do : this type of work most of the time. This member of the Board .. “j ., ,z: _ ::r i: ,:/.. .2 ::i:j :: : 5 -2 - 2, thought it was abundantly clear that the examples of the type of work done by Brick and Cutrone were examples of the work they perform on a regular and continual basis. There was no indica- tion on cross-examination that the examples the Union put forward were isolated incidents of highly technical work. In fact, it is this member's opinion that the evidence of the employer wit- nesses confirmed that the type of work done by both Srick and Cntrone was of this highly technical ~nature. No one qualified that by saying that Brick and Cutrone.are the ones::that are _<A.. selected to do-the highly technical survey drafting work "on the occasions when we get it." Rather, the evidence revealed that at all times there iswork which fits 02 a spectrum of relatively easy at the one end to highly technical at the other: and that the work at the far-end of the spectrum is assigned to Bric,k and Cutrone on a regular basis. Thus, I find it impossible' to understand how the Chairman can say that the evidence does not indicate that they do this type .of highly technical survey drafting work most of the time: Furthermore, in item 8, page 52, the statement that the Orafter 2 Class Standard can comfortably encompass the jobs I done by the qrievors, is totally inconsistent with what he has said before, in that he has gone to great lengths to show that the distinction between Drafter 2 and Drafter 3 requires an analysis of the words complex on one hand and highly-technical on the other. The Chair makes a finding that the work about which the Union is speaking is of a "highly technical" nature. Thus, to say that the qrievors do the "more difficult and important" survey plans is to negate and render meaningless the .,: ‘e -3 - 5 ., key distinction betsreen the Drafter 2 and Drafter 3 Class Standard which he already resolved in the Union's favour. _* v Marion M. Perrin, Member