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Home My WebLink About1982-0411.Foster.83-02-15GRIEVANCE IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Russel J. Foster) - And 2 Grievor The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer Before: M.R. 'Gorsky Vice Chairman S.J. Dunkley Member W.J. Evans tiIember For the Grievor: L. Stevens Grievance Officer Ontario Public Service Employees Union For the Employer: J.D. Henderson Head, Personnel Services Ministry of Transportation and Communications N. McKenna Landscape Supervisor Highway District 6 >Iinistry of Transportation and Communications Hearing: January 14, 1983 -2- AWARD The Grievor, Russel J. Foster, is employed by the Ministry of Transportation and Communication and is classified as a Highway General Foreman 1, assigned to Central Region 6 and is in the Landscape Section. The Grievor grieved that he has been improperly classified and requests that he be reclassified to the position of Arboriculturist 1. In the class definition covering Highway General Foreman 1 (Exhibit 3) it is stated that the class covers a number of different positions,the one covering the work performed by the Grievor being in its material parts: "This class also covers positions of foremen who are responsible for carrying out specialized maintenance operations within a District such as . . . landscaping and related arboricultural work where the general planning of such work is the responsibility of a qualified Arboriculturist 1." Yaterial to the work'being'performed by the Grievor is the further statement in the class definition: "AS a landscape foreman they supervise semi-skilled staff in carrying out a variety of arboricultural taskssuch as planting, pruning and removal of trees and shrubs, weed and brush spraying, sodding, seeding and general landscaping etc., on highway right-of-way and other department property." Under skills and knowledge required, the class definition provides: "A good working knowledge of tools and equipment normally used in operations. Ability to interpret working plans and specifications." -3- Under qualifications the class definition provides: "1 . Elementary school education. 2. Several years' experience in highway maintenance work. 3. Good physical conditions; demonstrated ability to supervise staff." The hierarchy of positions within the Landscape Section is set out in Exhibit 9 being a "Ministry of Transportation and Communications Organization Chart, Operations Division Toronto District (#6) Maintenance Office, Maintenance Services Section." The entry position is that of Landscape Labourer, the next highest position being Premium Landscape Labourer, followed by Landscape Worker and then the position occupied by the Grievor, Highway General Foreman 1. The incumbent in the latter position super- vises the previously described classifications in addition to certain others outside of the Landscape Section. The position which the Grievor claims he falls within is that of Arboriculturist 1, the class definition with respect to which classification is set out in Exhibit 5: -4- 'IARBORICULTURISTl CLASS D!ZFINITIOX: This class covers the positions in wbich'tne incumberrts',~re resoon- sible for landscape design, arboricultural and horticultural r& hithin a district of the Department of Highways. Under the geneJ.a.&rection of the Highk-ay Services Supervisor, they give technical direction and super- vise crews of men who perform seeding, fertilizing, sodding, weed and brush control, tree and shrub planting, pruning and removal of trees in order to beautify roadsides, control soil erosion, and assist driving.safety. They provide liaison and professional advice to construction and design engineers on all aspects of vegetative growth in their district. They control all work undertaken by public utilities pertaining to growth on hig!way'prsperty. They ensure proper mixture of chemicals and their safe application for weed and brush control operations to achieve the desired results.. They assist in establishing roadside parks, marking access routes to make the best use of present groh-th. As directed by head office, they organize test projects to evaluate new products, materials and methods. Ability to supenise staff. Sound knowledge of completities of vegetative grow&. in a variety of soils. and climatic conditions. QU.4LIFIC.ATIONS: 1. A degree in forestry tir horticulture from a recognized universiry, or a diploma from the Niagara Parks Cozxaission School of Hortic-+Lture or a recognized equiva.lent.pertaining to landscape architecture. Revised Aoril 1966" -5- The Grievor's immediate Supervisor, Mr. N. McKenna, is the District Highway Landscape Supervisor, being the position at the top of the Landscape Section, who is, in turn, supervised by the Services Supervisor who is responsible for Operations Division, Toronto District (#6). Mr. McKenna .had previously been classified as an Arboriculturist 1, is a graduate of the Niagara Parks Commission School of Horticulture and holds a diploma from the University of Guelph in Horticulture. The evidence disclosed that as a result of a reclassification process Mr. McKenna became classified to the Management Position of TM 14 in 1980 and along with his other duties supervises the Grievor. The evidence disclosed that: (1) Mr. McKenna is responsible for "landscape design, arboricultural and horticultural work within a district in the Department of Highways." In this case District #6;j~ (2) That"under the general direction of the Highway Services Supervisor he [gives] technical direction and [supervision] to crews of men who perform seeding, fertilizing .r sodding, weed and brush control, tree and shrub planting, pruning and removal of trees in order to beautify roadsides, control soil erosion, and assist driving safety." (3) He provides "liaison and professional advice to construction and design engineers on all aspects of vegetative growth in their district". (4) He controls "all work undertaken by public utilities pertaining to growth on highway property." He also assists"'in establishing roadside parks, marking access .routes to make the best use of present growth." (5) "[A] s directed by headoffice ~[he -6- organizes] test projects to evaluate new products, materials and methods." Items one to five are all included in the class standard for Arboriculturist 1. It must be emphasized that nlr. McKenna is not classified as an Arboriculturist 1 but is a District Highway Landscape Supervisor who performs the above noted work as part of his other work. Although the Arboriculturist l'class definition is still in existence, the evidence disclosed that within District #6 no one is formally assigned to that designation. There is,no doubt,some overlap between the work performed by the Grievor and that described in the Arboriculturist 1 class definition. Nevertheless, the singular and significant responsibilities as set out in the Arboriculturist 1 class definition relate to the incumbents "responsibility for landscape design, arboricultural and horicultural work within a district of the Department of Highways." Within District #6,and in particular within the Landscape Section, this work is performed by Mr. McKenna and although the evidence disclosed that the Grievor is a skilled worker and is highly competent in carrying out the functions assigned to him, he has not been assigned the design responsibility referred to. He operates not under the general direction of the Highway Services Supervisor but under the supervision of Mr. McKenna the District Highway Landscape Supervisor. It is,no doubt,a genuine source of aggravation to the Grievor that his advancement is affected by the fact that there is no incumbent in the Arboriculturist 1 classification in District #6 in the Landscape Section; Mr. McKenna, fulfilling this responsibility along with his other responsibilities. -7- From the Grievor's position,the situation is unfair and represents a source of frustration. Nevertheless, the powers of this Board are restricted to determining whether the Grievor has been properly classified as a Highway General Foreman 1 and whether he ought to be reclassified as an Arboriculturist 1. Although the Grievor clearly operates at the higher level of the Highway General Foreman 1 classification he does not perform the significant functions of an Arboriculturist 1, as above noted. In addition, although he has certain functions with respect to the opening of roadside parks and the marking of access routes to make the best use of present growth, the evidence did not disclose that he assisted in establishing roadside parks as is provided for in the Arboriculturist 1 class definition. Nor did,the evidence disclose that he organized test projects to evaluate new products, materials and methods. Rather it was disclosed that in these areas he assisted Mr. McKenna who had direct responsibility for the organization of test projects and the evaluation of new products, materials and methods. While the description of the Grievor's performance of his assigned duties indicated that he could very likely, if called upon to, perform competently the responsibilities set out in the Arboriculturist 1 class definition,it is also clear that his assigned responsibilities and the work that he performs fall more consiste.ntly within the responsibilities covered by the Highway General Foremen 1 classificationthan that of Arboricult- urist 1. Accordingly, and for the above reasons, our Award is that the Grievor has not been improperly classified and the grievance must be dismissed. DATED AT London, Ontario this15thday of February, 1983 M. II. Gorsky Panel Chairman "S. J. Dunkley" S. J. Dunkley Panel Member "W. 3. Evans" w. 3. Evans Panel Member 5:2400