Loading...
HomeMy WebLinkAbout1982-0013.Lowman et al.82-08-25TE‘EPHOUE~ 476/5os-o6s8 13/82 34/82 35/82 36182 THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE CRIEVANCE~SETTLEMENT BOARD Between: Don C. Lowman Robert W. Moore Robert J. Tafe Brian A. Teasdale The Crown in Right of Ontario (Ministry of Transportation and Communications) i &fore: M.K. Saltman P.~Coupey M. Watters Vice Chairman Member Member ‘- For the Grievor: L. Stevens Co-ordinator, Grievance Department Ontario Public Service Employees Union For the Employer: Hearings: Grievers Employer F.3. Girvan Head, Classification and Pay Adminktration Section Personnel Branch Ministry of Transportation and Communications . February 14, 1983 June 21, 1983 June 20, 1983 June 30,198) - 2 - i In this case, the Grievorr, Don G. Lowman, Robert W. Moore, Robert J. Tafe and Brian A. Teasdale, claim that their positions have been improperly classified. The Grievors are currently employed in the Mi,nistry of Transportation and Communications ("the Ministry") as Regional Remote Sensing Supervisors, classified as Photograrmmtrist 4. They claim that they ought to be classified as Engineering Officer 3 (or equivalent). i The job of Regional Re,l;cte Sensing Supervisor is to provide analysis and advice to technical and professional staff both wfthfn and outside the Ministry engaged in planning; design, construction and mafntenance of regional transportation systems by using remote sensing techniques, namely, interpretation of aerial photographs and other imagery, fncluding thermal scanners and satellftes (although, due to limited facilities available in the Ministry, aerial photography is the primary technique); and to assist and supervise subordinate Staff in doing the same. For many years, the remote sensing function was performd exclusively at Head Office of the Ministry in Downsview by Igor Drunewych, who was classified as an Engineering Officer, Level 3. Then. in the late 1960's. the decision was made to decentralize the remote sensing function. The process of decentralization took place over a period of years and by 1976 a Remote Sensing Supervisor had been installed in each of five regions as follows: Central Region lgor Drunewych Eastern Region Robert W. Moore Northwestern Region - Don G. Lowman Southwestern Region - Brian A. Teasdale Northern Region Robert J. Tafe n . . -3- All of the jobs, except in the Central Region, were classified as Photograesnetrist 4. The job in the Central Region, khich was filled by Mr. Drunewych, who was the incumbent of the job in Head Office, was . classified as .Engineering Officer 3. (Subsequent to the filing of the grievances by the.incumbents in the other four regions, the job in the Central Region was reclassified ,downward to Photogramnetrist 4 and the incumbent, Mr. Drunewych, was red-circled. However, during the course of the hearings in this matter, the original classification of 'Engineering Officer 3 was restored and the red-circling removed.) From.the time the remote sensingfunction was decentralized, the? was dissatisfaction expressed among the four Grievck about their job classification. This dissatisfaction apparently.came to a he,ad in 1976 with the appointmentof Mr.'Drunewych to the job in Central Region. From that time on, submissions to have the jobs upgraded were made~on the Grievor's behalf by several supervisors. .However. these submissions were rejected and the job classifications remained unchanged. In 1980, all five jobs, which had been managerial exclusions, were brought within the bargaining unjt. Further attempts to have the jobs reclassified were unsuccessful. Ultimately, between September 25 and October 21, 1981, the individual grievances whfch'are the, subject of this hearing were file'd. The job of Remote Sensing Supervisor, as it was explained to the Board, is to apply remote sensing techniques to the resolution of a variety of transportation problems. including (1) the location of new highways, railroads..power lines, airports, bridges and drainage systems; and (2) the maintenance and/or repair of existing structures. -4- ( The position specification for Regional Remote Sensing Supervisor has gone through several revisions. However, the following summary of duties and responsibilities appears in both position specifications and would appear to represent the core functions of the job: "Provides supervisory management of the Remote Sensing Unit. -Provides technical guidance and assistance to the staff of the Remote Sensing Unit and other Regional staff engaged in the engineering investigations related to the transportation planning, design, con- struction and maintenance by using remote sensing techniques. -Discusses with the regional planning and design per- sonnel the advantages and limitations of information that can be derived by Remote Sensing methods such as route location, soils, drainage, flooding, location and drainage structures, environmental impacts, cost analysis, site selection (e.g. proposed airstrips and town sites). -Provides the Regional staff with information about deposits of construction materials such as their location, tonnage, nature and depth of over burden, quality and suitability for various purposes, potential hydrological difficulties, haulage access. etc. -Provides Regional Soils Engineer with information about Engineering Soils Mapping on specific corridors. such as their classification, extent and suitabilities for various purposes, instabilities, soft subgrades. drainage and related hydrological problems for use during the construction of various transportation modes. -As regional specialist in remote sensing provides assistance and guidance to professional and technical personnel on the application of remote sensing techniques to transportation engineering related inves- tigations. -Determines if required information can be provided through remote sensing methods and from internal and external sources." This description was supplemented by the testimony of two principal witnesses for the Grievors: Igor Drunewych, the incumbent in Central Region, to whom the Grievors sought to be compared; and Don Lawman, the Incumbent in Northwestern Region. On consent of the parties, / I . . -5- Mr. Lowman's evidence was accepted on behalf of all of the Grievors. According to Mr. Drunewych, drainage-related matters constitute the major portion of his work; which include drainage studies to.be utilized either (7) in the design of new drainage systems; or (2) in defending against claims of erosion or complaints 'of property damage or' health hazard caused by existing drainage systems. In the typical damage case, a complaint is received from a land-owner that there is drainage from Crown property (usually a culvert) onto orivate property', thereby c- causing damage (oftento crops). In these circumstances,.Mr. Drunewych would'(l) confirm the facts by aerial photography, i.e. determine whether in fact there is drainage from the Crown culvert onto-private property; (2) if so, determine whether the drainage is lawful (which requires the assistance of the Ministry's solicitors and legal fnstruamnts); and (3) finally, provide data (including information on the type of soil, vegetative cover,'land use and rock formation, etc.) for use by a planner or designer in resolving the drainage problem. .In .addition. Mr. Drunewych may recormaend a resolution to the,problem. i. In addition to drainage-related matters, Mr. Drunewych may be called on to perform functions in connection with the construction of a. proposed highway.. These include (1) conducting land studies (including skid resistance studies); (2) preparing thematic and topographical maps showing the distribution of land affected by the proposed highway; and (3) recormnending solutions to any problems created thereby. Evidently, Mr. Drunewych has been called upon infrequently to.perform this function since there is limited highway construction in the Central Region.. 9 . . -6- In carrying out his functions, Mr. Drunewych relates to planners, designers and properly agents within the Ministries, as well as private property owners (with respect to the acquisition of property, by expropriation or othetwise, and disposal of property); officials of other ministries; and environmentalists. In addition to responsibility for remote sensing, Mr. Drunewych performs a number of supervisory functions in connection with the personnel under his supervision and with the admin,.... +-+ration of budgets for his unit. Mr. Lowman, who testified on behalf of all of the Grievors, claimed that he performed the sam functions as Mr. Drunewych. In addition, in the Northwestern Region, he has acted as a consultant on the selection of a suitable location for new highways, access roads and airports; and on the upgrading of existing structures. With respect to the location of new highways and access roads, Mr. Lowman is required to conduct a remote I sensing Study, which inclu&s a terrain evaluation study of the area in question in order to determine the consistency of the terrain and the presence of available construction materials, e.g. gravel and bedrock. Based on information derived from the terrain study and in view Of certain ( / '\ environmental considerations, such as the location of provincial parks, Mr. Lowmao's job is to (1) identify various alternative routes for the proposed highway or access road; (2) calculate the cost of these alternative routes; and (3) make recomnendations (based in part on cost estimates) as to the most efficient transportation route. These recornnendations are then passed on to the regional planners and designers and, on occasion, may be presented to the public. Evidently, Mr. Lowman has not undertaken an extensive remote sensing study for the location of a new highway since -7- 1977 although he continues to conduct more limited studies with respect to route location. Mr. Lowman also acts as a consultant on photogramnetric surveys, making recomnendations as to the suitability of photogrammetric techniques for the problem at hand and, if suitable, providing guidance as to the proper scale, accuracy and design of the photogramnetric study, which is actually conduc.ted by Head Office personnel. In addition, Mr. Lowman has acted as technical consu?tant to various northern committees i ’ (including the Northern Ontario Transportation Committee) examining the c feasibility of access roads and airports into Northwestern Ontario. He has also appeared at one hearing of the Land Compensation Board as a witness on behalf of the Ministry to explain (Andy, presumably, to defend) the extent of disruption of natural resources in ~the course of construc- tion. Mr. Lowman also carries out certain supervisory responsibilfties, which are also performed by Mr. Drunewych in the Central Region, i.e. (1) assigning work to his assistant; (2) supervising and evaluating 'the per- formance of work so assigned; and (3) verifying the assistant's time sheets and.expense accounts. ', Based on the evidence, the Union clajmed that the Grievors were improperly classified. More particularly, the Union c,laimed that the Grievors were doing the same work as Mr. Drunewych. the inctient in the. Central Region. . . - -H- In order to succeed in its claim, the Union must prove that the Grievors were performing duties which cone within the higher classification as measured against the.relevant class standards or as measured against the Employer's actual classification practices. More particularly, if the Grievors are performing duties which come within the descrfption of a higher class standard, the grievance must succeed. The grievance will also succeed, notwithstanding that the duties do not fall within the higher class standard, if other employees performing the same duties* are classified at the higher classification, which the grievance claims (Re Rounding et al. 18/75; Re Lynch 43177; Re Pretty 64177; & Edwards & Maloney 11/7B; Re Montague 110/78; Re McCourt 198/78; Re McLean et al. 499/82; Ontario Public Service Employees Union v. The Queen in rioht of Ontario (Ministry of Comnunfty and Social Services) December 21, 1982 (Ont. Div. Ct. (unreported))). , In the instant case, the Grievon seek to be classified at the Engineering Officer 3 level. The Employer's first position is that the grievances must fail since there are no class standards for the Engineering l There has been some debate in the jurisprudence as to whether it is sufficient, in establishing a clatm for a higher classification. for the Union to prove that the employee's duties were "substantially the same" as the duties performed by other employees in the higher classification sought or whether the Union must prove that the duties performed were "identical". For instance, the Board has said that the Union must prove that the employee's duties were "virtually identical" to the duties of other employees in Re McCourt 198/78; "substantially similar" in Re Beals 8 Cain 30/78; and "the same" in RelMa;tague !10/78. This latter test would appear to have the approva o the Divisional Court: see Ontario Public Service Employees Union v. The Queen in rioht of Ontario (Ministry of Community and Social Services). supra. In view of the disposition of the grievances in the instant case, it is not necessary to decide this matter. -9- Officer series. There are in fact no separate. class standards for,the~ Engineering Officer series. However. the practice which has been followed by the Employer is to classify Engineering Officers (who are not professional eng~ineers) dccording to the class standard for the professional Enpineering series at the. next higher level. For instance; the class standard for Engineer 3 is used to classify Engineering Officer 2 and, of particular importance for the instant case, the class standard for Engineer 4 .is used for the Engineering Officer 3 classification. In.view of the Employer's practice in classifying positions in the.Engineering Officer series by reference to the Engineer class standards, there are in fact class standards (albeit from a different class series) which the Board may consider in assessing 'the Grievors' claim. In the instant case, i,t is patently obvious,that the duties performed by the Grievors do not come within the class standard for Engineering Officer 3 (which is in fact the class standard for Engineer 4 and which i’s attached as Appendix "A" herein). ~(Mot-e particularly, the class standard for Engineering Officer 3 refers in general terms to the supervision of construction and maintenance projects whereas, the job in / .., question deals with the application of remote sensing techniques to the resolution of transportation probTems.) Accordingly, the grievance c,annot succeed based on a comparison with the class standard which is' used for Engineering Officer 3. ., The thrust of'the Union's case, however, is not'based on the written class standards but on a comparison of duties with another employee, i.e. Mr. Drunewych, who is class'ified as.Engineering Officer 3. At the outset, it should be said that the Board finds that the Grievors were performing duties which were substantially the same as I F I - 10 - Mr. Orunewych, who is classified at a higher level. (In fact, it would appear that the responsibilities assumed by all of the Regional Remote Sensing SupervSsors, includfng Mr. Orunewych, were identical, although the actual functions which were performed may have varied based on the physiography of the region.) Nevertheless, in the Board's view, this is insufficient to establish the Grievors' claim. As previously stated, the essence of the Board's inquiry in a case of this nature is to determine whether the Employer has conformed to its actual classification standards. These standards are measured by the Employer's written class standards unless there is proof that the Employer has varied the written standard. If there are employees classified at a higher level who are doing the same work as the Grievors, it may indicate that the Employer has by its practice varied its written class standards (Re Montague 11008). In these circumstances, the Employer's practice of classifying employees is a form of extrinsic evidence which may indicate that the Employer has in fact reinterpreted its written class standards. However, in order to rely on such evidence, there ordinarily must be a consistent practice of varying the class standard and, in the usual case, the class standard must be sufficiently broad to cover the job in question*. , \ In the instant case, the Board finds that the class standard for Engjneering Dfflcer 3 (which is in fact the class standare for Enqineer 41, * The Board recognizes that there may be circumstances where the Employer has classified a large number of employees at a higher classification even though the class standard would appear not to cover the job in question. In those circumstances, another employee performing the same duties as the larger group would have a legitimate claim to the higher classification notwithstanding the apparent inapplicability of the class standard. although broad in scope, in no way covers the job of Regional Remote Sensing Supervisor performed by the Grievors. Moreover, only one employee performing these functions, i.e. Mr. Drunewych, has been classified as Engineering Officer 3. In these circumstances, where the written class standard clearly does not embrace the job in question and where only one employee who isperforming the job is classified thereunder, the Board cannot conclude that the imployer has amended its written class standard. C- Since the job in question does not come Within the Written class standard for Engineering Officer 3 and since the Employercannot be said to have amended the written class standard by its practice of classifying employees thereunder, the grievances against classification must fail. There remains nevertheless an apparent inequality'of treatment with another employee, i..e. Mr. Drunewych. However, the issue before the Board on a grievance of this sort is not inequality of treatment or discrimination peg me but whether by its unequal treatment, the Employer has amended'its ' written classification standards. This was the conclusion reached by another panel of the Board in Re Montague and Ministry of Housing 110/78. I’ In View of the importance of that conclusion, it bears repeating: c. "If another employee doing work identical to.the grievor is classified at a higher grade, it may indicate that the employer's actual classification practices differ from the writtenclassification standards. It should be noted, however, that the concern is with the proper .application of the employer's classification system. Therefore, it may not be conclusive for a griever to show that one employee in a higher classification per- fons the ?%e tasks; for it may be that such an employee has been improperly classified. In dealing with applications under Section 17(2)(b) of the Crown . . - 12 - Employees Collective Barqaining Act, S.O. 1972 C. 67, or grievance regarding classlficatlon under the collec- tive agreement, the uoard 1s not alrecrlv concernea with discrimination between emplovees in the application qf the classification system, unless the differential treatment demonstrates a chanqe in the classificatioa system from the written standards. The Board's concern is with the question of whether the grievor's job has been improperly classified, when that job is measured against absolute standards." (pp. 5-6, emphasis added) Nevertheless, it is of some concern to the Board and ought to be of concern to the Employer that the Grievors, who were performing substantially the same functions as Mr. Drunewych, are classified at a ( lower level. Although on a superficial reading, the job of Regional Remote Sensing Supervisor would appear to be described within the Photogramnetrist class standard, such a reading fails to recognize the essential distinction between photogrannmatry (which refers in general terms to the process Of obtaining precise measurements, including maps, from aerial photography) and remote sensing (which deals with the interpretation thereof). In view of this' dfstinction, the conclusion is inescapable that the job of Regional Remote Sensing Supervisor is inadequately dealt with within the Photogramnetrist class series. However, given the class standards presently i in existence, there would appear to be no choice but to place the job within the Photogramnetrist series. In reality, however, the job is one for which there is no appropriate class standard. The Board would urge the Employer in the exercise of its exclusive jurisdiction to classify jobs td remedy this deficiency by promulgating a class standard for Regional Remote Sensing Supervisor (of which photogrananetry is only a small portion) and to enter into negotiations with the Union for a new rate therefor. In view of the : , :, . . . - 13 - Board's jurisdiction, however, the instant grievances must be dismissed and the matter of rectifying the Griever's rate of pay left to the parties. DATED AT TORONTO, ONTARIO this 25th day of June; 1964. @&G.&&J&. bl. Saltman Ice airman P . H . Coupey. Member M.V;'Watters Member i APPENDIX "A" ,I ENGINEER 4 CLASS DEFINITION: This class covers engfneering work of a responsible and advanced nature with considerable latitutde (sic) for independent action and decision, and usually entails the supervision of a number of engineerinq and technical employees. The employee may be in charge of all construc- tion or maintenance work carried out in the district, or in charge of a minor engineering subdivision. He may supervise the preparation of plans for installation of services for large public buildings and the organfzing of other important engineerfng projects. He may be the district liafson official between municipal authorities and the Provincial Government, approving plans. giving advice and passing expenditures for provincial grants in-aid. The work is usually carried out under direction of a district engineer or the assistant to the Branch Head and it is reviewed occasionally for general progress and l conformity to Departmental'policy. CHARACTERISTIC DUTIES: As Construction or Maintenance Engineer: directs, assigns and supervises the construction of all highways and road development projects in the district, or all the maintenance, repair, resurfacing and upkeep of Provincial highways and road development projects in the district. As District Municipal Engineer: co-operates with municipal councils in the planning and assignment of work done under Road Expenditure by-law; co-operates with duly elected Road Commissioners according to the provisions of the Highway Improvement Act; plans and supervises work on designated Development Roads in the municipal district; oives advice on and promotes road development in unorganized areas. Under general supervision designs and prepares specifications for large engineering projects such as bridges, dams, additions to public buildings, etc. Supervises and directs traffic and safety programznes. Gives professional supervision to a large draftino office, correlating the production of plans and maps of important engineering projects. Performs other engineering work on a similar level, as assigned." . G,-- . 21/82 IN THE hjATTER OF FAN ARBITRATION Under. THE CROWN EMPLOYEES COLLECTIVE BARdAiNlNC ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Jim Walker) and The Crown in Right of Ontario (Ministry of Correctional Services) Crievor Employer Before: J.F.W. Weatherill Chairman E. H. Weisbach Member H. Roberts ,Member For the Crievor: ‘R. Nabi Grievance/Classification Officer t Ontario Public Service Employees Union For the Employer: P. Mooney Staff Relations Officer Civil Service Commission’ Hearing: July 7, 1982 In this grievance, dated December 3, 1981, the grievor alleges that the employer is in violation of article 46.9 of the collective agreement between the parties. That ,article provides.for pre-retirement leave with pay, in certain circumstances. There is no dispute as to the facts, which were set out by the~parties in a joint statement. Those facts are as follows: 1. 2. 3. 4. 5. 6. I. 8. The grievor was at all material times an employee of the Ministry of Correctional Services and, an employee within the meaning of the Collective Agreement. The grievor.was a Probation Officer II at the time of the filing of the grievance. The grievance was filed in a timely fashion and proceeded properly through the stages . of the grlevance'procedure. The GSB has jurisdiction and authority to. hear and determinethis grievance subject to the proviso in Article 27.12 of the Collec- tive Agreement. There are no preliminary objections. The grievor has been continuously employed by the employer since October 1, 1956. He completed 25 years of continuous service.on September 30, 1981, for which he received 5 days vacation in accordance w,ith Art. 4.6.8. The grievor terminated employment with the employer by retiring. The griever's date of birth is February 15, " 1917. He attained the age of 65 years on February 15, 1982. '-3- 9. The grievor's mandatory retirement date'was February 28, 1982. 10. The'employer's documentation shows that the grievor retired on January 15, 1982. 11. The grievor requested pre-retirement leave in accordance with Article 46.9, on or about- December 1, 1981. 12. Atall material times-the grievor earned vacation credits at the rate of 2-l/12 days per month pursuant to Article~46.1.2(~) of the Collective'Agreement. Article 46.9 of the collective Agreement is as follows: 46.9 An employee who has completedtwenty-five (25) or more years of continuous service is entitled, to receive, in the year ending with the end of month in which he attains the age of sixty-five (65) years, pre-retirement leave with pay equal to the difference between thirty (30) days and the number of days of his vacation leave-of- absence earned in that year asset out in sections 46.1 to 46.8. Where the employee who hascompletedtwenty-five (25) or more years of service is absent from duty on leave-of-absence withoutpay in that year; he is entitled to pre- retirement leave with pay,equal to the difference between thirty (30) days and the number of days of vacation leave-of-absence that he would have earned in that year if he had not been absent from duty on leave-of-absence without pay. Clearly, the grievor is an employee who had completed twenty-five or more years of continuous service, at the material times. He was therefore entitled to receive pre-retirement leave with pay, pursuant to article 46.9 of the collective agreement. He was entitled to receive such leave with pay in the year ending with, the end of the month in which he attained the age ,of sixty-five years. The grievor attained the age of sixty-five years - a..- in February, 1982. The year ending with the end ~of that month was the twelve-month period from March 1, 1981, to February 28, 1982. A "year" as here used, is not the calendar year, but a twelve-month period ending on a .- determinable date. Only in'cases of persons with birthdays in December would that period coincide with ~the calendar year. The pre-retirement leave to which the 'grievor was , entitled (in the period from March 1, 1981, to February 28, 1982) was, as art~icle 46.9 then specifies, leave with pay equal to the difference .between thirty days and the number of days of his vacation leave of absence earned in that year, as set out in articles 46.1 to 46.8. "That year" is clearly a reference to the yearfor which the calculation is to be made. In the instant case, that year was the twelve-month-period from March 1, 1981 to February 28, 1982. The amount of vacation leave of absence earned by the'grievor in that year is calculated, as article46.9 indicates, by reference to articles 46.1 to 46.8. By article 46.1.2(c), the grievor earned vacation credits, at the material times, at the rate of 2-l/12 days per month. It would appear that he was entitled to have such rate appliedfor the full twelve months, pursuant to article 46.2. Thus, in the year in question, the grievor earned twenty-five days of vacation leave of absence in accordance with those provisions. In addition, by virute of article 46.8, there was added to the grievor's accumulated vacation, entitlement five days of vacation. That special provision applies only to the one occasion on which an employee completes twenty-five years of continuous service. In the grievor's case, that event .. occurred on September 30, 1981. He was credited with the fiv,e days' vaaation entitlement provided for by article 46.8. Thus, the g~rievor was credited with ,a total of thirty days' vacation leave of absence for the year in. question. All of that leave constituted an earned benefit. Clearly; -under article 4'6.9, the total of pre-retirement cleave credits and vacation leave credits cannot exceed thirty. That is the effect of the formula set out. In the instant case, because of the substantial vacation leave to which.the grievor was entitled, and because, during the year in question, he became entitled to five extra days of vacation pursuant to article 46.8, that maximum was reached. The grievor was entitled to.the benefit of article 46.9, but because of the other leave- with-pay credits to which he was entitled under ar~ticles ,461.l to 46.8 (the intervening articles not referred to are not material to the issue before us), thisdid not .result in any improvement of his position. - -6- It cannot be said that this interpretation of'article ~46.9, which .in our view gives its words their clear and ordinary meaning, renders it nugatory, or that the benefit thereby provided .is. illusory,. It would appear that the article is of less value. to.the more senior than to junior employees, and where, as here, in the case of a senior employee the one-time special credit for com- pletion of twenty-five years' service applies there is no practical benefi t. ~That is, however, then clear effect of the parties' agreement. For the foregoing reasons, the grievance must be dismissed. DATED at Toronto this 25th day of August, 1982. 1,~ . . "I concur" (see addendum) E.H. Weisbach Member Ii. Roberts Member -7- ADDENDUM After reading and considering the decision of the Board in the above grievance, I must, very reluctantly, agree, with the findings of the Board. The wording of article 46.9 is, to the layman, a rather complicated one and in m) opinion is open to different interpretations. .I agree with the ‘findings of the Board that, while the article has certain advantages, it also has certain disadvantages in particular for senior empioyees. Therefore, I found myself in the. position that I have to, although reluctantly, agree with the findings of the Board. However, I wanted to make my feelings known, through this addendum. August 7,1982 H. Weisbach Member