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HomeMy WebLinkAbout1986-1098.Kelusky et al.89-12-06- COMMISSION DE REGLEMENT DES GRIEFS 180 O”NOAS STREET WEST. TORONTO. ONTARIO. MS50 IZS. S”ITE2IW TELEPHONE/T&hW,NE 1SO. RUE DUNEMS OUEST. TORONTO. (ONTAR!‘? MS0 110 -BUREAU 2100 ,‘1s,sss-osss 1098/86, 1264,'86 1365/86, 1366/8'6 1444/86 IN TEE RATTER OF AN ARBITRATION Under THE CROWN EMPLOiEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLEBENT BOARD Between: OPSEU (Kelusky, Schaefer, Tornquist, Rejczak, Kirkpatrick) -and- Grievor The Crown in Right of Ontario (Ministry,of Transportatiqn) Employer Before: For the Grievor: For the Employer: Hearinq: December 1, 2, 1988 T.H. Wilson Vice-Chairperson F. Taylor Member D. Montrose Nember C. Dassios Counsel Gowling, Sttathy & Henderson Barristers & Solicitors K. Cribbie Staff Relations Advisor Human Resources Branch Ministry of Transportation -_ Page 1 ,1, DECISIDN The five grievors all hold the position of Senior Technician Remote Sensing and are classified as Photogrammetrist 3. They grieve that they are improperly classified. Ron Tornguist testified as the representative grievor. He works out of the Thunder Bay office of the Ministry of Transportation and Communications. The grievor J.B. Rejczak also works at the Thunder Bay office: -R.A. Kelusky is at North Bay; R. Schaeffer, at London and Frank Kirkpatrick at Kingston. By way of background, it is of some significance that in 1982 four supervisors who were classified as Photogrammetrist 4s grieved that they should be classified as Kngineer~ing Officer 3s (or equivalent). Their grievances (GSB #13/82 et al.) styled Loman and the Hinistrv of Transwrtation and Communications were dismissed by the Board on 25 June 1984. App~lication for judicial review was made to the Divisional Court and on April 23, 1985 the Board decision was guashed and set aside and the matter remitted back to the Board. The reason for the Court's decision turned on the fact that there was one other employee doing tbe same work and classified at a higher level (citing OPSEU V. The Queen in Risht of Ontario (1982) 40 O.R. (2d) 142). The duties and responsibilities of tbe grievors In our case are described in a Position Specification and Class Allocation dated 05/01/87 as follows: Page 2 Duties and related tasks (what is eaplogea required to do, hov and vhg? Indicate perceuraqe oi tiae spear ou each dut9 for the qeneral superrisioa of the Supervisor Beaote Sensing. Iocusheat sill: Perfora aa Interpretative service for the reqional planoiaq, desiqa. constriction and sainteoaace iunctions in area of re!ote bcnainq asd bthsr photoqraaa(tric functions hy: reviesinq stud9 asslqnsent oblectives and sattrial requirements. tb deteraiue scope oi study and clarify specific needs ia discussions with supervisor or cliant: Delineatinq and classiiyinq pattern eleaeats co provide rhesatie data, e.q. cupoqraphy drainage, consolidated and unconsblidated aateriais, natural vegetation. land use,. etc. for plaaninq studies in iora oi laps, annotated mosaics and reporta: detersiniaq the final location aad preliainary estiaated construction costs of oev hiqhvays. access roads and other transportation aodes such as rail or pipeline criteria for eon3tructlau proleers: deterainiaq aost sound location oi bridqas and culverts: Identiipinq aes sources of granular aaterial such as their location, tonnage. oature and depth of overburden, quality and auirahility for various purposes, potential hgdroloqlcal diiiiculties, haulaqe access, etc., for construction prolects: providing regional staff ultb information about enqinccrinq soils aappioq on specific corridors such as their classificatlona, extent aad sUftabllftl~6 tar various purposes, Instabilities, soit subqrades, drainaqe and related hgdroloqical probless ior use durioq the COPltruEtiOn bf Various transportation lodes; providing drainage studies, ditchinq studies and hydroloqp studies for the lbcation and design of-drainaqe structurea and controls usinq resote sensing setbods: recossendinq to planni’nq aad design; Uuuicipal and Baiutenance, the location and sire of culverts: preparinq approsiaate profiles hg the calculation oi elevations usinq the parillas bar for future rbute aliqnaent so that poasible qradinq quantities can be catculated and the aost econoaical route sag he selecredl Interpretiuq possible environrental sensirlvIties and advising client or supervisor at likely lapact: assistinq Supervisor in all the reqional activities required for the production of phoroqraaaetric plans such as dataraination oi areas of plan coverage by reaote seusinq and photo interpretation techniques, obtaininq and dereraininq density oi horizontal and vertical control to complete such plans; saintaiuinq up-to-date iaaqe library cantaininq regional serial photographs, satellite iaaqery aud asps and related aaterial as required; discussiaq and recoancndinq avallabla and aost appropriate courses of action open to engineering and technical staff on the hasis of stud9 findinps. Perfora an Interpretive service for the Relate Northern Transportation Office in areas oi resole sensinq aud other photoqraaaetric functions bg: conductlnq feasibllitg studies and recasaendiuq the final locations. preliainary desiqn. and preliainarg estiaate construction costs of llunicipal and Reaote Airports to the established lransport Canada roninq criteria: viririnq proposed airport sites as a aeaher oi a pre-enqineeriuq teaa to establish the etact aliqnaent location for the proposed runvaps, parkiaq, apron and access road and to sake iurther aodifications to the aliqnaent if required on site dependinq on additional survey inforaatioh, i.e. soils, etc.: Page 3 Assist supervisar Qa 9Qte casplel pralects which 9ay involve studies in palicicallg seasltive areas: resQlutiQa .Qt prQhles3 created by the coa9cructiQa. pldaaiaq Qt desija ‘QC ileld verification of disputable phQtoqrassetrie latetpretstiQa9. etc. Duties say include: .:beckiaq dr9iasqe vork prepared by zoasultaats reqatdiaq suai,:ipal drains aod rceQ9seadiaq changes shere required; preplriaq draiaaqe studies and repQrt9 rcqardiaq draiadqe daraqc cl9i99 aqsiast tbc Hiairtty: :,ndu;tLaq t?lsibility studies and det?rsiaiaq. i~r the Norrbero Zatsri: R?SJur.:?S yraaspztt9tiQa CQs9tttee possible acce99 road lacatioa and pertinent CQasttuctiQa $592~: detersiaiaq [II the Hiaiscry si Norther DevclQpteat aad iliner. the lQsati,Qa Qi ptssibl? ae9 hiqhvays and the upqtsdiaq Qf elistiaq hiqhuays sith estisated coastructioa ~::sts 9s part :f 9 prQqra9 t! cstablisb 1Qaq raaqe hiqbvay 2QastructiQa priarities ior Norther Cat9ri.I: prividiaq Jther iaiQrsati.Qa as required by supervtsur. Carry iut field ?srk to CQllect iafQisatiQa’tQ verify reSUit3 Qi relate seaslaq laveSilqdClda9. by perfQrsiaq tasks such as: visiting Qiiises si :~Qnsultaats and qovera9eat aqeaciar: :oataccioq the public. c.q. PrQpeKty QYaers: sakiaq ,Qa-rite iaspe;tiaas and recQ9readatisas. Periota ether related duties such ss: actiaq in the absence Qi the Supervisor, Relate Seasiaq: tr9iatnq rcqular and casual stafi in relate seasiaq 9ethQds: keepiaq abreast Qi &eyei$pseats in the iield Qi Rcrote Sensing and Pboraqrassetri:s by zrudy si published sateriel and attendance dt professiQaa1 coareatisas and sesiaars: asslstiaq in the Qrqaai:stiQa sad preseatatiQas ui teqiQaa1 cQuf9es i:r t?:hai:il lad pt;iessiQn91 staii JP Reroti Seasiaq and Shotaqrasletry: as assiqoed. Tornguist testified that the Surveys and Plans Section of the Ministry using survey information produces plans and maps for construction engineering and .for contracts and legal survey plans. The plans for construction engineering are for highways and airports. There are also photogremmetric plans made from air photographs. In the case of legal plans an actual survey on the ground is needed. It shows profiles with vertical cross-sections. The legal survey plan (called a B plan) shows only two dimensions. His testimony was that the bulk of his own work as a Senior Technician Remote Surveying was interpretation of photographs. He uses his judgment to determine how terrain will affect projects. But the photogrammetric plans themselves are produced by the photogrammetric section in Toronto. The photograph analysis is intended to find the best way of locating a corridor for a road or the location for an airport. He looks through a device (stereoscope) at two pictures placed side by sides. It provides a three dimensional picture so he can analyxe the hills, valleys and creeks. He would try to find as many suitable locations as possible. He does a preliminarystudy of the physical problems and. he transfers the information from the photographs to a map on which he marks the possible site and perhaps a preliminary recommendation. This phase is called the Preliminary Feasibility Study. When the proposals progress through the planning and design process, his next involvement would be a Preliminary Site Investigation.. He goes with someone from the Environmental section in the Ministry of Transportation and someone from the Geotechnical section to the site. If for example, the project is a proposed airfield for an Indian Sand someone from the Air Office would accompany them to speak to the Band. An internal meeting is then held to eliminate marginal sites. Next he would . request a Control Plan from Head Office. The photogrammetrists prepare that from aerial photographs. After the process has narrowed the choices to a few possible sites, the grievor would then go to these sites where the team locates and cuts survey lines and does a field survey. He provides guidance to the survey team. There would be a fuil survey team. The grievor himself would spend much of his time looking for local gravel sites that could provide building materials. His next involvement would be to prepare a Preliminary Design which involves writing a report comparing two possible sites and including costing. This involves such factors as the cost of clearing trees, building access roads, availability of materials and the terrain, and any environmental factors. The next phase is another Internal Meeting to which he may be invited to answer questions. Normally the grievor's supervisor would attend this meeting at which the final site selection is made. ~Only once has he ever had one of his recommended sites rejected. The grievor does prepare drainage and hydrology studies and filed an example of such a report he had prepared for a law suit brought against the province in relation to alleged run off of waters onto a claimant's land. Although he may mark land forms on a thematic map, called a mosaic, he does not make the mosaic. In his opinion, photogrammetry is the science of precise measurement to produce plans and he does not produce these plans. Patrick Otway is the Head of Surveys'and Plans, Northwest Region. He had been in surveys and plans for 13 years since it began. Before that he was a field supervisor in engineering and survey. Photogrammetry in his view is the interpretation of aerial photographs. The term remote sensingcame into use around 1971 but the work had been done since 1948 under~the title photogrammetiy. James Henderson has been the Head of Personnel in the Central Region since 1977. As an employee in Personnel before that, he gained specialized experience in classification and pay administration. In 1981 the regional positions were reclassified to Photogrammetrist 3. This decision is set out in a memorandum dated 81.05.19 from J. Bebbington, Classification and Pay Administration Officer to the Heads, Personnel Services. It explained as follows: Heati, Personnel Servicks All Regions 81.05.19 From: Personnel Branch, 1st Floor, West Tower. ra: ALLOCATION OF REGIONAL POSITIONS To PHDTOIXAMFIXIST 3 A grievanw filed in the Central Region and subsequent discus- sions with Civil Service Staff and Head Office and Regional Line -~Managers indicate that the class of Photogrametrist 5 is the appro- priate ‘best fit" level for tbe position of Senior Remote Sensing Technician in the Central Region. The class definition for Phoiqgrammatrist 3 states in part that; : : :. “This class covers positions of fully experienced photogrammetrists, .~ .who under general supervision of a photogrametry section supervisor are receiving further photogrammtry training and familiarization prior to assignment to regional photogrsmmetdc positions~*. It also goes on to state that, “As regional photogrametrist-in-training, employees . . . disam thb application of photogrametrlc methods to solving mgineering problems in the region and supply information on photogrammetric retieas and techniques available to regional personnel~. Tkey prepare drainage and hydrology studies, mosaics, study plans. and photograwetric control networks for an assigned region; They may be required to participate in training staff..“. The Central legion position -later to the clsss definition -in that it rquiras the dagree of further photogrsmmetrlc training and familititation callad for in the class definition to be able to undertake responsibilities of tbu Regional Photogrsmmetrist, dis- azss the application of photograwetric methods to solving engineer- ‘ing problem in the regif~n and supply information on ~photogrmetric servieas and techniques available-to regional personnel. The Central Region position a@0 prepares studies, mosaics; etc. Would you please ascertain if.the foregoing criteria applies to any positions in your region. To assist you in reviewing, writing snd allocating we ara i attaching a copy of the position specification in the Central Region which has been allocated to Photogrametrist 3 on an atypical basis. Policy on the effective date for class allocation is the first day of the month in which the position is submitted for class al- location. JB:dX 3. Bebbin’gton. Classification and Pay Administration Officer. In the opinion of the witness, Personnel had succumbed to pressure and reclassified at Photogrammetrist 3 level. The witness did not agree with this step: in his view, the photogrammetrist 2 level was more appropriate. The change was done on a "best fit" approach which he claimed was synonymous with "atypical." The term "atypical" is defined in the Ontario Manual of Administration as follows: "Atypical-Allocation" The allocation to a class of a position that in general fits that class better ~cban any other but is significantly different from other positions in the class with respect to: function(s) carried out; or skills and knowledge required. Best fit is a relatively common practice which has become more common recently because of the diversity of jobs. Class standards are not developed for all the jobs. Union Counsel asked Henderson whether he agreed that the core of the definition of a classification must apply to a job. He said that would be ideal with the exception of an atypical allocation. Turning to the class standard, Union Counsel put to the witness that the grievors did not fit the Class Standard for Photogrammetrist 3. Henderson agreed. He believed they _ fit Photogrammetrist 2. I have attached the Class Standards as Appendix A. Central to the union's case is the first paragraph of the Class Definition of Photogrammetrist 3. It states: "This class covers position of fully experienced photogrammetrists who, under general supervision of a photogrammetrist section supernsor, are responsible for directing a staff carrying out photogrammetric control operations OR, are receiving further photograimetry training and familiarizatzon prior to assignment to regional photogrammetric positions." Page 8 The union's position simply put is that the grievors do not fall within either of those two descriptions. They do not supervise a staff and they are not in training. Furthermore, they do not generate photographic plans: they interpret them. In the final paragraph in the definition, the only part of it they do is "prepare drainage plans." In the union's view, the grievors do not do the core function of the class definition. The Ministry's position was that as the evidence had indicated the class definitions were created before the service was regionalized. The classifications are sufficiently general to cover the grievors. Qtway had testified for the Ministry that photogrammetry covers remote sensing. In 1966, the standard contemplated that the supervisors would do the analysis and there is no evidence that the work is any more technical now'than it was in 1966. Under these circumstances, the atypical classification is the best approach. It is the Union's response to this argument that while the atypical classification may still have a role to play, the use of atypical classification should be read in the light of the Bern, decision (Divl.Ct. ) and that Vice-Chairperson Saltman's decision in &@l precludes the use of these class definitions to cover remote sensing. The principal issue in terms of arbitration theory or doctrine before us is the use of atypical classification in light of the Divisional Court decision in OPSEU and w & Ministry of Community & Social Services. At page 13 of that decision, (March 13, 1986) Hr. Justice Reid wrote : I, . . . The question that does arise is whether the Board had power to require the employer to find or create a classification for grievers. I think it had that power. Its authority under s. 19 of the Act is unt.ramwelled. It "shall decide the matter." Simply to dismiss the grievances when it acknowledges that the grievers -..-.-. -~.. __---~ Page 9 are wrongly classified is to empty the grievance procedure of any meaning. It is a common place of the law that the existence of a right implies the existence of a remedy." Then at page 15: . . : If the board concluded that the classification was wrong, its mandate Was to effect a proper classification. Its jurisdiction is unrestricted. Its mandate is remedial." In a recent decision of this Board, Kuntz and Ministry of Housing (GSB 85/89), Vice-Chairperson Verity did not accept a union submission that an atypical allocation is inappropriate per se following the judicial review in w, (see pp.8 ff.). Without commenting at this time on all aspects of Mr. Verity's reasons, I take it now as this Board's position as a bare proposition that "atypical" classification is not per se invalid. The Ministry Counsel cited to this panel the decision In Patrick et al. and Ministry of Community and Social Services GSB 547/80 decided 11 July 1980. At page 22 the Board therein states, quoting first a Ministry witness: I. . . . atypical situations occur when positions, duties and responsibilities differ significantly or the degree of skill or knowledge reguired differs significantly from the class standards. If a very small number of people are doing .a job which does not appear to fit properly within any class series, rather than develop a new class series for that number the "least inappropriate" class series is chosen. In the case of the grievors they are apparently two of.approximately 50 employees in the province who are in the ~same boat and up until now the Ministry has not been prepared to develop a separate class series for them. It has also been pointed out in various awards such as Hooper (Swan) 47/77 that where the grievor is in ao atypical classification, perhaps more latitude should be given to the grievor when assessing the appropriateness of the classification. Thus, when looking to another classification to see if it is more appropriate, rather than comparing duties which will nomally fail to show a fit, one would compare by analogy." It is interesting to note that in that pre-Berry decision the Board found that the grievers were not properly classified as CW 25, found by Page 10, analogy, that they more properly fit the Technical Consultant Series and that the parties should meet to prepare an appropriate classification recognizing the lesser responsibilities the grievors had than the TC 1s in that series. I am of the opinion that while the Bx decision may not have invalidated atypical classifications, this Board given its clear mandate to direct that a new classification be established when it is satisfied that a grievor is improperly classified must insist that an atypical classification, not vary widely in its core features from the archetype of the classification. In our case, on the evidence it is clear that the grievors do an entirely different job from that described in the class definition. Even the Ministry’s principal expert witness on classification, Henderson, said under oath they did not fit. Indeed, according to the testimony of the representative grievor, his work is not that of a photogranunetrist at all - his work 1s entirely different. I am satisfied that the facts support that testimony. A photogrammetrist makes photographic plans. He does not do that. I do not even see an analogy here. In the Lm decision, Vice- Chairperson Saltman wrote at page 10: “although on a superficial reading, the job of Regional Remote Sensing Supervisor would appear to be described within the PhotogramneCrist class standard, such a reading fails to recognize the essential distinction between photogrammetry (which refers in general tern to the process of obtaining precise measurements, including maps, from aerial photography) and remote sensing (which deals with interpretation thereof). In view of this distincrion, the conclusion is inescapable that the job of Regional Remote Sensing Supervisor is inadequately deal .z with within the Photogrammetrist class series.” Mr. Cr’bbie argued for the Ministry that the Board in Loman had no evidence to support that finding of the “inadequacy of the photogrammetrist series” and that this Board had testimony justifying a finding of an atypical Page 11 classification within tbe photograannetrist series. I do not agree. I believe on that point, that Ms. Saltman was absolutely correct. The photogrammetrist series was inappropriate for the supervisors and is inappropriate for the grievers and specifically in our case the Photogrammetrist 3 is inappropriate as a classification. It is also clear to me that the problems of the class standard have to a very large extent been exacerbated by the decentralization of these Ministry operations as Ms. Saltman noted in her case and as was clear from the evidence before us. That being so and in light of the Board's jurisdiction, a Bern, order is necessary. The parties agreed that in the event of the success of the grievors in these grievances that should any issue of interest arise it would ba governed by the rule in the Hallowell House case (Service Emplovees International Union. ID2 183 and Hallowall House Ltd., rl980[ O.L.R.B. Reports 5, -and that the Board should remain seised should any disagreement with respect to it arise. The other outstanding issue is tbe effective date of any change in classification and any back salary that may result. The union argued that there were on-going discussions between the dates on which the grievors wrote letters requesting reclassification and the filing of the grievances. In the union's view retroactivity should be to the date of complaint and not just 20 days before the filing of the grievance. It referred the Board to the decision in Baldwin & w & Ministry of the Environment (GSB 0539/84, decided 13 April 1988). The Ministry relied on the 20 day rule and referred the Board to Smith and Ministry of Community and Social Services (GSB 237/81 -- decided 5 March 1985). In the u decision, the Board decided that the usual rule in the case of continuing grievance isr Page 12 ” . . . barring the existence of circumstances which would make it inequitable for the Ministry to rely upon it, retroactivity will be limited to the period of time within which it was permissible for the grievor to file his grievance. In the case of this Collective Agreement, that period is 20 days prior to the day upon which the grievance actually was filed." .The Board cited the earlier Board decision in OPSEU and Ministry of the Attornev-General, GSB 71/76 which followed the private sector rule as found in Re: __ Union Gas Co. of Canada Ltd. (19721, 2 L.A.C. (2d) 45 (Weatherill). Re: Automatic Screv Machine Products Ltd. (19721, 23 L.A.C. 396 (Johnston). Re: National AZ Radiative Manufacturinq Co. (1967). 18 L.A.C. 326 (Palmer). The Baldwin decision cited u as the relevant authority op the 20 day rule and then analyzed a series of subsequent cases including the Lowman decision released on August 20. 1987 (following the remission back to the Board by the Divisional Court decision discussed above) in order to decide what situations fell outside the 20 day rule. .In Smith itself, the Board analysed the situation in Hocper & Ministry of Government Services, GSB 47/77 to which it was referred as one where the Ministry had taken unilateral action in response to the grievor's complaint which might have resulted in the reclassification that he sought. It was only when the Ministry made known that it would refuse his request that the grievor realized he would have to use the grievance procedure. The responsibility for the delay was that of the Ministry not the grievor. In its own case, the Board found: "The facts of the present case do not appear to raise any similar eguity against the Ministry. To be successful such an equity would have to be in the form of a promissory estoppel, i.e. that the representations of Ms. Martin amounted to a clear and unequivocal promise to the grievor that all aspects of the settlement of the 12 grievances, including retroactivity, would be applied across the system; that Ms. Martin intended the grievor to act in reliance upon this representation; and, that the grievor did act in reliance upon it in circumstances where it would be Page 13 inequitable to permit the Ministry from going back on the promise. See Central London Prowrty m. W In the Lowman decision, Ms. Saltman after referring to the Smith decision states at page 4: “The’-matter of the grievers' classification has been an issue since well before their entry into the bargaining unit. Various Supervisors supported their request for reclassification. After the grievers came into the bargaining unit and raised the issue of their classification, they were advised that their Supervisors were making representations to have their jobs reclassified upward. It was only in the summer of 1981 that they were advised that there would be no change in classification. Shortly thereafter, the grievances were filed. “The circumstances in this case are similar to those in the case of Harper, 47/97 ISWanl, which also involved a claim for reclassification. In that case, before filing a formal grievance, the grievor complained to his supervisors about his classification. All of his supervisors gave tacit approval to his claim for reclassification. Nevertheless, the claim was denied by the classification officers of the Civil Service Commission who were empowered to make the final decision. It’ was only when he was advised that his claim had been denied that the grievor filed a formal grievance. In those circumstances, the Board decided that it would be inequitable to limit retroactivity to the time allowed for filing a grievance under the collective agreement because the grievor relied on his supervisors’ representations in delaying the filing of a formal grievance. As a result, the Board ordered relief retroactive to this date on which the grievor made his "complaint" known to management even though it was not in the form of a grievance. . . . ‘*In our view, the circumstances in the instant case are not dissimilar from those in em. The grievor5 expressed dissatisfaction to their respective supervisors. Various supervisors made representations on their behalf to have their classification changed. But the matter remained unresolved until the summer of 1981 when their requests for reclassification were denied. In these circumstances, it would be ineguitable to limit retroactivity co the time period for filing a grievance. as the grievers relied on the efforts of their supervisors. Even though there was no express representation that the classification would be changed, the matter was being actively pursued by members of management . As in Hooper responsibility for the delay does not rest entirely with the grievers. . . . ” Page 14 In Baldwin, the Board adopted the remarks made by the Board in w, namely, “Yet there is a competing policy which comes into play in this case. That is, the policy in favour of settling disputes short of invoking the grievance procedure and having recourse to the Grievance Settlement Board. A rigid application of the “20 day rule W would discourage employees from attempting through less formal means to settle their dispute. It would be far more desirable to grieve and “lock in” a fixed date which would become the basis for determining compensation in the event of success. “In the instant case the employees began to have some concern in early 1985 about their classification. They had known since July 1984 that they were responsible -for all of the functions although not all of them had been trained at the time. By the end of 1984 training had virtually been completed on all of the functions. In early 1985 attempts were made to have the position reclassified by rewriting the position specification in a way which would more accurately reflect the job as it changed and submitting it to Personnel for classification. Those efforts were unsuccessful but they should be applauded. Classification officers are far more competent than we are to classify jobs and to the extent that classification disputes can be resolved by those most competent to do so the parties should not be discouraged from seeking relief through such informal means. “Thus, we do not believe it appropriate to apply the 20 day rule where informal efforts have been made to achieve a settlement of a dispute short of recourse to arbitration. Those ‘efforts should be encouraged and in the event that they are not successful in achieving a settlement and it becomes necessary to grieve, such relief as might be awarded by the Grievance Sectlrment Board should be retroactive to the point where steps were first taken to settle the grievance informally. “We have no precise evidence before us as to exactly when those steps occurred except that they were taken in early 1985. Consequently, we can do no more than issue our award in general terms, that is, that the employer is obligated to compensate the grievor= in respect of the difference between their rate and the Clerk 4 rate for a period from “early 1985” to November 15, 1985. 9. . . . In the Baldwin case itself, the Board moved the period back to December 1982 when the grievor had presented a brief to management on behalf of all of the employees in the group asking the Ministry to go further and Page 15 undertake a full review of the Classification Standards. The Director of the Central Region indicated that the brief had merit and the Director of Pefsonnel said nothing. The Board cut out from that retroactive period a period after the request was later formally rejected by management until 20 days before the grievance. This has been a somewhat lengthy but useful detailing by me of individual cases where this Board was relieved from the 20 day rule. In my opinion, these factual situations are quite consistent and this Board's policy of encouraging meaningful negotiation between the parties prior to formal grieving made clear. I need now only look at the facts in our case to decide whether the pattern matches. On March 19, 1986, R. Tornquist wrote.to P. Otway, Head Surveys & Plans attaching a letter from R.S. Schaefer, Senior Remote Sensing Technician in the Southwest Region to Loscombe, Head Survey Section, London. Tornquist stated that he and J. Rejczak shared the same cdnsensus ahout thei; current classification as Schaefer. The reclassification of supervisors from Photogrammetrist 4 to EO 3 was particularly of concern to them in its impact. Tomquist concluded: "We believe that a comparative upgrading should occur at the senior technician level as soon as possible." On October 22, 1986, P.H. Otway replied: '*Further to our -conversations on this matter, the situation referred to in your letter has been discussed at two Head Office Surveys & Plans Commitfee meetings. The conclusion was that the Senior Technician's specifications would be submitted fo Head Office Surveys & Plans. The specificarion will be forwarded fo the Human Resources Branch for review and evaluation. "Once the position classification has been confirmed/determined, you will be informed accordingly. The general consensus af this Page 16 rime is that the present position specification reflects these duties and responsibilities of the position. ” Schaefer grieved on September 29, 1986. Tornguist himself grieved on October 26, 1986. He testified that he had not grieved right away because he was attempting to determine if there was any progress in the study going on concerning the classification. They were informed orally of what happened at the Surveys and Plans Committee meeting. The general feeling in management was that they were properly classified. When asked why he waited until October to grieve Tornguist testified: 'We were trying to follow proper channels. We also did review the job specification: management asked at a meeting. ” They also frequently asked their supervisors how the review was going. otway. testified that the drafting of the new position specification (Exhibit 4) was done in late 1986 between October-1986 and I January 1987. He also testified that between the receipt of the March 10th memorandum end the receipt of the grievances, he never made any representations that the grievors would be reclassified: nor, to his knowledge, did anyone else. The union argued that the March memoranda along with the on-going discussions justifies en order relieving from the 20 day rule. The Ministry argued that the March memoranda are not sufficient notice since they do not really properly set out the reasons for the challenge to the classifications. In light of the jurisprudence set out above and this Board's clear policy of encouraging efforts to resolve these issues internally without recourse to the grievance stage, I am satisfied that these grievers through their written Page 17 memoranda and their participation in discussions vigorously pursued their claim to improper classification prior to filing of the grievances so as sufficiently to put management on notice that if they were not reclassified by management, they would pursue their remedies. Management did not until October 1986 inform them that they would not be reclassified.whereupon they filed their grievances. Any adjustment of wages that might result from the reclassification directed to be made by this Board will therefore be retroactive to the filing of the relevant memorandum for each grievor. In the result, the grievances are allowed on a finding that the grievors are currently improperly classified. The Board orders the employer to classify the grievors properly so as to correctly reflect their actual duties and responsibilities. The employer shall complete this reclassification within a reasonably expeditious period of time and this Board will retain jurisdiction pending the implementation of this decision, including as well any issue of retroactivity and‘interest as set out above in this decision. DATED at Toronto, Ontario this 6th day of December, 1989 T.H. Wilson Vice Chairperson D. Montrose, Member 12880 APPENDIX ” A ” J PHOTOGRAMMETRIST 1 CLASS DEFmITION: This class covers positions of employees who are receiving training in the use of photograminetric instruments such as stereoscopes, Multi- plex and Saltzman projectors, sketchmaster& and Parallax Bar and the application of photogrammetric methods and techniques to civil engineering, resource conservation and cartographic operations. Under close super- vision, they are given relatively routine assignments such as simple photo identification, tracing of photographic detail on study plans, preparing semi- controlled .mosaics, etc. They are expected to produce finished results with the assistance and advice of senior photogrammetric personnel witb whom work is checked on completion for accuracy and adherence to established standards and specifications. As photogrammetric skills and aptitudes develop, employees receive specialined training in photo analysis for hydrology and drainage studies oi photogrammetric control operations. They prepare study plan control sheets r.elating ground control data, checking centre points and tie points, laying out slotted templates for adjurt- ment of ground control, marking adjusted centre and the points on master grid, pointing and cutting templates. They operate Multiplex and Saltzman Projectors to transform photographic detail onto study plan sheets. identifying control detail with a stereoscope from aerial photographs. They prepare photogiiphic.plans and semi-controlled mosaics; plot details using sketch-. master from aerial photographs to new or existing maps. Under close supervision,. they asgist senior photogrammetrists in the production of large area drainage and hydrology patterns, site profiles of problem areas and alternate r’&ute location plans by identifying ground details, drainage patterns, true ground shape and analysing soil and rock conditions from vegetation coverage observation. SKILLS AND KNOWLEDGE REQUIRED: 1. Stereoscopic vision snd ability to read and analyze detail on aerial survey photographs. 2. Basic knowledge of field survey and/or drafting methods, practices and terminology. QUALIFICATIONS: 1. Grade 12; preferably Grade 13 mathematics OR an equivalent - combination of education and experience. 2. At least two years’ field survey or drafting experience and success- ful completion of examinations approved by the Civil Service Commission s four years’ related drafting and photogrammetiy experience. July, 1966 1 4 12882 PHOTOGRAMMETRIST 2 ! CLASS DEFINITION: This class covers .positions of fully trained photogrammetrists, who under direction of senior photogrammetric personnel, perform technical work involving the use of photogrammetric instruments and the application .of photogrammetric methods and techniques. They prepare detailed hydrology and drainage studies, an d establish systems for pbotogrammetric control. They are required to carry out assignments to completion, re- ferring oaly unusual or difficult problems to supervisors. They use judgment in interpretation, selection and presentation of data and initiative in planning details of assignments. Work is checked on completion for quality, accuracy and adherence to sp;ifications and standards. Also covered is one position where the employee acts aa group leader of the com- . pilatron sub-section preparing study plans and mosaica. By three dimensional etudy, they select, identify and determine vertical and horizontal control points for topographic mappings. They position aerial targets in ti,e field ensuring intervisability between target points; in- strutting field surveying’ personnel in carrying out necessary ground surveya; contacting private owners, public’utilities Bnd other governmeatal~agencies for permission to use towers, buildings, struduras, em. for control pur- poaes. They compute geographic and grid co-ordkramr, machine or instrument settings and scale adjustments for photogrammetric plotters and plot co-ordinates on compilation manuscripts from data received from electronic zomputing centre. By using knowledge of surface soils, geology, and structural make-up of Ontario, they interpret aerial photographs and prepare detailed drainage and hydrology studies, reports and profiles. They stereoscopically project new highway routes md revisions to existing systems on mosaics, prepare mile by mile cost breakdowns and comparisons to alterrmtive routes. When required, they prepare controlled mosaics of critical areas for enlargement purposes. They may be required to assist in training junior employees. In the group leader position, he also directs the work of a sub-section engaged in the production of study plans and mosaics by photogrammetric methods. They assign and check work and provide guidance to trainee photogrammetrists in the early stages of their employment. SKILLS AND KNOWLEDGE REQUIRED: 1. Stereoscopic vision and ability to read, amlyze and interpret detail on. aerial survey photogrephs. . . . . . . . ‘2 . 12882 ; -2- Photogrammetrist 2 (cont’d) Skills and Knowledge Required: (cont’d) 2. Drafting skills;- competency in mathematics; skill in tbe use of photogrammetric equipment for tbe preparation of clear and accurate plans, manuscripts, maps; ability to calculate photogrammetric control points, and check measurements on drawings and plans. 3. Thorough working knowledge of photographic analyses and iater- pretation methods, work procedures, and their application to the’ solution of engineering and conservation problems and operations. Ability to carry out assigned projects and to present information and data verbally and in report form to others. Familiarity with various types of engineering and land survey plans. topographic, geological, and soil maps. QUALIFICATIONS: 1. Grade 12; preferably Grade 13 mathematics OR an equivalent - combination of education and experience. -2. At least two years’. experience as a Photogrammetriat 1 G six years’ progressively responsible experience in pbotogrammetry and drafting. July, 1966 12884 PHOTOGRAMMETRIST 3 CLASS DEFINITION: This class covers positions of fully experienced photogrammetrists who. under general supervision df a photogrammetry section supervisor, are. responsible for’ directing a staff carrying out photogrammetric control operations OR are receiving further photogrammetry training and familiari- sation prior to assignment to regional photogrammetric positions. As a photogrammetric contro1 supervisor, he directs .a staff re- sponsible for obtaining all required photogrammetric ground control by photo examination. He investigates, locates and places aerial targets throughout a project. He prepares and requests a survey by electronic measuring devices and standard field survey methods and ensures that staff plot the resultant data in manuscript form to be used by stereoplotting and, special projects group. -He examines all aerial survey films flown by commercial companies to ensure compliance with specifications. He plots and compares cross-sections prepared photogrammetrically to overlapping field source data for accuracy and ensures the movement of plans, photo- graphs, cross-section data, and croaar reproductions ordered through de- partment by consultants. He is responsible for the indexkg and storage of all finished manuscripts, electronic measurement control data, and vertical and horizontal control‘photography. . As regional photogrammetrist-in-training, employees carry out periodic visits to an assigned geographical region. They discuss the applica- tion of photogrammetric methods to solving engineering problems in the’ region, and-supply information on photogrammetric services and techniques available to regional personnel. They prepare drainage and hydrology studies, mosaics, study plans, and photogrammetric control networks for an assigned region. In all positions they may be required to participate in traintig staff. SKILLS AND KNOWLEDGE REQUIRED: 1. Stereoscopic vision and ability to read, analyze and interpret detail on aerial photographs. 2. Thorough working knowledge of photographic interpretation methods, photogrammetry control, and departmental standards and practices. Knowledge of all types of land plans, geological, soil and topographical maps. . . . . . . 2 Skills and Knowledge Required (cont’d) 3. Ability to prepare reports and correspondence, advise and explain photogrammetric methods to others and to direct and supervise a staff of photogrammetrists. QUALIFICATIONS: 1. Grade 12; preferably Grade 13 mathematics OR an equivalent combination of education and experience. 2. At least nine years’ progressively responsible photogrammetry and drafting experience, .three years of which has been as a Photo- grammetrist 2. . July, 1966