HomeMy WebLinkAbout1982-0596.Argo.86-04-18THE GRIEVANCE SETTLEMENT BOARD
Under
THE CROWN EMPLoGEES COLLECTIVE BARGAINING ACT
BE.TWEEN:
. ,
OPSEU (Lloyd Argo) Grievor,
.; i,:.~ ,.~.
.Before:
The Crown in Right of Ontario
(Ministry of Transportation and Communications)
R. J. Roberts Vice-Chairman
L. Robinson Member
A. G. Stapleton Member
Employer.
Appearing for :
the Grievor: M. Farson
Counsel ,, ~~
Cornish & Associates
Barristers & Solicitors
Appearing for
the Employer: P. W. Codner
Staff Relations Officer
Personnel Services Section
Ministry of Transportation &Communications
Hearings: March 11, 1985
November 4, 1985
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AWARD
This is .,one of those perplexing.cases arising out of
an"atypical"classification. In such cases,.,it seems that asking.
whether the grievor's job "best fits" one of two classifications
is a bitlike asking whether an apple is best,described as a
large or small orange.. The question forces a choice to be made
betweentwo unlikely alternatives. Nevertheless, we will do
our best to rise to~;the challenge.
In October, 1981, the Northern Region of the Ministry
decided to combine the job of Program Development Officer with that
of the grievor, who then was the Regional Scheduling Co-ordinator
of the job. According to Mr. W. Peck, who was the Manager, Resources
Planning, etc., for the Region, it was decided to combine these two
positions because the person who held the position of Program
Development Officer had just retired and it had been observed
that both jobs had redundent functions. Up until that time, the
Program Development Officer had supervisoryG7TLresponsibility for the
grievor. The former was classified as a Tech 3 Construction
(Atypical). The qrievor was classified in the more junior classi-
fication of Scheduling Co-ordinator 3.
The grievor testified that his previous job dealt only
with the scheduling of pre-engineering activities, for example,
dealing with plans, surveys, and geotechnical matters in
orderto prepare contract packa,ges.. The role of his former
supervisor, he stated, was in Program Development. That.activity
did not continue, but had the scheduling added to it and essentially
became the new job. The new position, the grievor stated, differs
from his previous'~schedulinq position in that it generates the
projects that he used to schedule. He stated that he also performs
field investigations, identifies deficiencies, and prepares
a full report on various ~deficient areas.
Mr. Peck testified that he was the person who prepared
the summary of duties and r~esponsibilities for the combined
job, which was 'given the title of Program Assessment and Develop-
ment Officer. This summary reads.as follows:
SUMMARY OF DUTIES AND RESPONSIBILITIES
There are three major functions of this position
which are performed under limited supervision re-
quiring the incumbent to utilize a high degree of
~initiative and judqement as his decisions directly :.
affect the overall Regional~Capital, Minor Capital
and Day Labour Programs.
1. Planning Function:
-Identifying highway deficiencies from Highway
Inventory.
-Developing Regional priorities to address
deficiencies in the 3 categories of Capital
Construction, Minor Capital and Day Labour
through cqnsultation with the various Regional
and District-Offices.
,-Formulating priority lists into 5-year work
plans for Capital Construction program through
30% consultation with Priority Development Branch
and Senior Officials of the Ministry of Northern
affairs.
-In conjunction with the Regional Municipal
Maintenance Office, assists in the development
of the Minor Capital and Day Labour Programs.
-Analyzing technical information, preparing
justification reports for a variety of projects
2.
30%
il_“..
3,
25%
4
10%
4.
and arranging the,issuance of Work Project
numbers.
Scheduling & Co-ordinating the Pre-Engineering
requirements in conjunction with Senior Management
Andy Section Heads by:
-Scheduling and allocating available resources
to effectively and efficiently implement work
plan within predetermined time frames
-Providing current,status of all projects for
dissemination to users through usage of Regional
P.E.S.A. computer system.
-Monitoring actual versus predicted results
advising Manager,. Engineering and Right-of-Way
of analysis and implement requisite remedial
action as required.
-Reviewing'with the Manager, Municipal/Maintenance
Office, the overall Regional Minor Capital
and Day Labour Programs consisting of a'variety
of projects carried out in five Districts. ~...,
-Scheduling and c.oTordinating requisite pre-
engineering requirements for each project.
Assessment Function:
-Reviewing Regional Work Plan to ensure the
Plan is consistent with the Provincial Roads
Long Range and Operational Plans.
-Recommending to senior management the most
effective alternative to compensate or correct
deviations.
-Preparing annual report actual versus:predicted
results indicated in the overall work plan
analyzing deficiencies projecting pre-engineering
cost including manpower allocation, projected
estimates, efficiency in delivering work program
and actual expenditures.
Performs other duties such as:
-Liaising with Priority Development Branch with
respect to Regional Work Program to ensure
all internal/external commitments with regard to Regional Program are met.
-Processing clearance reports.
-Preparing and/or printing input for all
correspondence pertaining to Regional Advance Construction Program. r
5;
-Providing executive-secretarial duties to the
Chairmanof ,Regional Program Committee. ,-
5% 5. As assigned.
Mr. Peck testified that inhis opinion, 30% was
appropriate for the scheduling and co-ordinating furiction. He
added that while the grievor was involved in drafting reports
such as justification reports, he did not have authority
to sign them, in the sense of being the person who authorized
them. Hestated..on cross-examination that when the job of
.I.*:-. 'h-y>+ Program Development Officer was merged into this new job,
there were other duties than those mentioned by the grievor,
such as duties regarding staff training in construction, etc.,
which were taken out of that position and allocated to other
positions in the Region.
The grievor testified that when he became the incumbent
in the new job, he expected to get the classification of Engineering
Officer 3, which, for purposes of this arbitration, was stipulated
by the parties to be the same asTech 4'Construction.' He stated
that this was what he was told by Mr. Peck at the time that the
job was advertised,and that Mr. Peck said there was a good chance
for an upgrade to this level because of the addition of responsib-
ility
In his own testimony, Mr. Peck denied giving the grievor
any such assurance. He recalled that he said to the grievor that I
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6.
7
Tech3 Construction was the bottom line, in the sense that the
classification could not go below that, but that he had to remain
"neutral" with respect to the chances for any upgrade because there
were too many uncertainties regarding an apparent on-yoiny.review
of the Engineering Officers' series. He indicated that he never
said to any of the applicants that there was a "good chance" ~Of
a higher classification. -: .,::;:..
The yrievor testified ~that the emphasis in his new
job upon planning as opposed to mere implementation or scheduling--
as in his old job-- was something which qualified the job for the
classification of Tech 4 Construction. Be also referred to a job
competition notice for a Senior Project Analyst at Head Office
'which was classified at the Tech 4 Construction level. The \
description of the job in the competition, he. stated, was very
similar to the work in his present job. This description was as
follows:
THE JOB:
Under minimal supervision you will develop.and
maintain the annual and multi-year Capital Con-
structlon Work Projects Plan (Work Plan). Duties
require that you analyze and evaluate work projects
that are nominated for inclusion in the Work Plan
and co-ordinate their progression through to con-
struction. You will also prepare staging plans for
interrelated projects for budget purposes, identity
and review any project scheduling and/or cp-ordination
problems with Regional staff and recommend appropriate
action that will ensure the Work Plan is consistent
with priorities and Ministry objectives. As well,
you will identify issues, collect and analyze pertinent
.background data from other offices and external agencies
and prepare concise documentation, reports and corres-
pondence for senior executives and the Minister's Office.
7.
The grievor stated that, ~.as described above, he worked
under ~minimal supervision and ~developed and maintained the multi-
year capital cost plan. He also analyzed,evaluated, and co-ordinated
throu,yh to construction,projects just like those described in the ,:_
notice of competition. He also stated that he prepared Staging
plans,.identified and reviewed project-schedules, dealt with
problems with regional staff regarding restictions due to funding
problems, etc., and directed funds to higher priority projects.
As .in the foregoing description, he added;he dealfzwith other "
agencies such as the Ministry of Northern Affairs. . :
. The grievor added that he was responsible for several
reports, and primarily the justification report, which identifies
deficiences, defines the scope of the project, and recommends the
timing and type of reconstruction. He agreed, however, on cross-
examination, that eventually, this report would get to a Senior
Project Analyst in the Head Office, who was empower~ed to review
and return the report if it was deemed to,be, e.g., incomplete.
He added that in the last seven years, he has never had one
report returned.
In cross-examination, Mr. Peck agreed that communication
skill was an important factor of the grievor's job. He stated
that scheduling, as a form of communicating objectives and
de1 ivery of programs,. was a matter which was
important. He added that the yrievor did not have responsibility
: . .
8.
to deliver programs as promised. The grievor did have to meet
‘I deadlines to submit scheduling reports, he stated, but he did not
have the responsibility to.deliver the project which was being
scheduled. This responsibility, i.e., that of meeting the schedule,
was that of the Project Manager. The grievor's job involved over-
seeing or-monitoring the projects tosee if deadlines were being .~
met. In performing his scheduling functions,,,.Mr. Peck stated,
the grievor would be dealing with.both Senior and Junior Project
Managers. If a Project Manager were identifi,ed by the grievor
as not being gable to meet the schedule, then the matterwould come . .
to Mr. Peck's level and it would be at that level that a decision
Gould be made either to add resources to meet the schedule or make
a change. As‘~to adherence to departmental policies regarding
design, Mr.~.Peck stated, the Project Manager was responsible for
that. The grievor did not have to worry whether policies and
procedures were being followed. In fact, he did not have any need
to know what they were.
The class standards for Technician 3, Construction
and Technician 4 , Construction, reads.as follows:
TECHNICIAN 3, CONSTRUCTION
CLASS DEFINITION:
(3 ) These employees, as construction supervisors,
co-ordinatr several road and/or bridge construction
p,rojects.(&hey review completed design drawings with
the District Construction Engineer and recommend re-
quired changes in design, procedures or specifications
based on an inspection of the proposed project site.
(&hey arrange for project supervisors, survey technicians
and inspectors to adequately staff projects, and period-
ically inspect projects to ensure conformity of all
phases of construction to contract specifications.
9.
(4). They review problems with project supervisors and
refer only complex technical problems to'the Con-
struction Engineer.(.5)They review monthly progress
payment reports.and final estimates and ensure proper
documentation to support contractor paymentsd5)They
review infraction reports and contractor's claims,
write, detailed reports on claims and recommend to
the Construction Engineer amounts that should be paid.
(7)They also review contractor's evaluation reports which
are used as a basis for contract bidding pre-qualifi-
cation.
QUALIFICATIONS:
1. Grade 12 education.
2. At least 7 years' experience in related work,
:.preferably with the Department. :
3. Demonitrated supervisory and administrative ability.
TECHNICIAN 4, CONSTRUCTION .i= .
.._. CLASS DEFINITION
(1) h T ese employees act as Assistant to the Con-.
struction Engineer in Districts where the construction
programme is very large.(z!They arrange utility relocations
prior to the start of construction and negotiate with
utility companies the .Department's contribution to
the costs.(3)They work closely with road design staff
or consulting engineers during the design stage of
projects, providing guidance based on many years of
highway construction experience and an intimate know-'
le.dqe of Department policy.
(,4) They review requests for staff received from
construction supervisors and transfer staff from contract
to contract as the work load fluctuates.(5)rhey prepare
lists of candidates for qualifying examinations and
review the results of tb.ese examinations with the
individual technician.(c?They review field appraisals
and recommend re-classifications.
('7 1 Using their knowledge of design standards and
construction procedures they assist the Maintenance
Engineer in handling complex utility encroachments
on highway rights-of-way.
(8)-, arnce the Construction Engineer is frequently
on projects reviewing progress in the field, these
employees act for him'by giving decisions on a wide
range of problems encountered in the field and for which an immediate decision by telephone or radio
is imperative.
10.
QUALIFICATIONS:
1. Grade 12 education.
2. Extensive construction experience in supervisory
position. ~.
3. Demonstrated supervisory and administrative
ability.
(Sentence numbers supplied.)
Mr. Peck testified that virtually none of the riumbered
sentences in either of the tWo class standards, above, apply to
the qrievor's job. As to the classification of Tech
3 Construction,
he testified that while the qrievor was not a cpnstruction super-
visor, he did co-ordinate scheduling of pre-engineering design
projects. Similarly, with respect to sentence(4),he stated that
the sentence did not apply in context but the grievor did review
problems and referred them to the Manager of Resources, etc.
The remaining sentence upon which Mr. Peck was prepared to make
some comment was sentence(6), when, he indicated~~that somewhat
analogously, the grievor prepared justificati~onreports .and
the scheduling forms. Other than in these tangential respects,
he testified, none of the sentences was applicable to the qrievor.
ication of Tech 4 Construction, Turning to the classif
Mr. Peck testified that none of the
@lapplied even tangentially to the
sentences save sentence number
griever's job. with respect
to the description contained in sentence(3), he stated that the
scheduling aspect of the griever's job required him to work with
design staff to determine.the scheduling of work.
It was submitted on behalf of the grievor that nothing
11.
in the description of the Tech 3 classif,ication applied
to the griever's job; however, some of the sentences in the
Tech 4 did apply. With respect to sentence(?), it wa,s pointed
out that, while the grievor did not arrange utility--relocations,
he at least provided information for that purpose to the Utility i
Relocation Co-ordinator for the Region. As to sentence($,,
it was 'submitted that the grievor worked closely with road design i
staff as the main part of his job. In this regard it was stressed
that the Tech 4 class standard referred to road desi~gn while Tech
3 never referred thereto. It also was stressed that, in line
with the requirements of sentencer, the qrievor was capable
of providing guidance based u,on 18 years of highway construction
experience in a supervisory position with the Ministry. It
was pointed out that the griever was ver.vf&liar with.deparf-
mental policy. Because planning was the essence of the grievor's
job, and the first three sentences of the class standard for
Tech 4 Const.ruction, had some emphasis upon planninq,~ it was
submitted the "best fit"'for the griever's j'ob was classification
of Tech 4 Construction.
We have already alluded to the difficulties which
were presented to the parties .and the Board by the fact that
this was an "atypical" classification. On any objective ex-
amination of both class standards, it must be concluded that
neither fits the grievor's job very well. In light of this, it
:would seem tooartifical to attempt to resolve the question before
us by contorting. this or that aspect of the griever's job in
such a way as to fit within a sentence or two of either class
i’ 12.
..standard. Rather, it would seem most appropriate to attempt
to draw from the evidence some idea of whether the grievor was
required to exercise in his job the level of~skill, ability
and responsibility to be expected of a Tech 3 or a Tech 4.
. .
Our c~onclusion is that, on this analysis, the grievor's
job "best fits" in the classification of Tech 3 Construction.
Most telling in this respect, it seems, is the fact that when
.~ the two previous jobs were merged; the one at the highest level,
i.e., that of the grievor's supervisor, was classified in.the
classification of Tech 3 Construction. The evidence was that
no more responsible duties were added to this job in the merger;
rather, the added duties must have been of a less responsible
nature. They were the scheduling, etc., duties of the grievor
which were classified~ at a lower level. These duties constituted
30% of the revised job. This leads to a strong inference that,
if anything, the new job was of a less responsible order than
that which had been classified without challenge as a Tech 3.
Unless the evidence showed that the original Tech 3 job must have been /
wrongly classified all along, it would be impossible to conclude
that a downgrade in the responsibility level of that job could
result in an upgrade to the classification of Tech 4.
There was little, if any, evidence to illuminate this
aspect of the case. The qrievor did testify that he believed
that the merged ~job resembled closely'that of a Senior Project
Analyst at Head Office, which was classified at the same level as
a Tech 4 Construction. However, this evidence was far from
. 13.
sufficient to show that the grievor exercised the same level
of responsibility as a Senior Project Analyst. The latter position
was at Head Office, while the qrievor held a job in a Region.
Moreover, according to the description in the advertisement
of the competition, the Senior Project Analyst was responsible
to prepare documents, reports and correspondence "for senior
executives and the Minister's Office." This; it seems, is indicative
of a higher level of responsibility than that exercised by the
qrievor. In line with this, it'must also be noted that, according
to the evidence, it'would be a Senior Project Analyst of this
type who would be responsible for reviewing, e.g., justification
reports prepared by the grievor and authorized by his supervisors.
The grievance must be dismissed.
DATED at London, Ontario, this 18th day of 'April,
1986.
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L. Robinson. Member