Loading...
HomeMy WebLinkAbout1987-1107.Swibb et al.91-01-25DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN ENPLCYBES COLLECTIVE BARGAINING ACT Before TRB GRIEVANCE SBTTLENNNT BOARD OPSEU (Swibb et al) - and - The Crown in Right of Ontario (Ministry of Transportation) Grievor Employer BEFORE: M. Watters Vice-Chairperson J. McManus~ Member D. Montrose Member FOR THE GRIEVOR FOR TEE ENPLOYER S. Watson Counsel Gowling, Strathy & Henderson Barristers & Solicitors : D. Francis Counsel Winkler, Filion & Wakely Barristers & Solicitors December 19, 1989 September 10, 1990 r The Board was initially confronted with twenty (20) grievances involving allegations of improper classification. Nineteen (19) of these concerned work performed in five (5) class:ficat;ons in District 4 (Hamilton). The other arose from District 7 (North Bay). The classifications in issue are Maintenance Foreman; Electronic Technician; Electrical Apprentice; Line Manager; and Maintenance Electrician. At the hearing, the parties agreed that this award would be restricted to the Maintenance Electrician classification. This agreement encompsssed the grievances of D. Swibb, E. Fulford, t-i. North and R. Rei.d. ‘All of these gentlemen work in this classification in District 4. Mr. Swibb was presented as a representative witness whose evidence would bind the others in the group. All of the remaining grievances were adjourned on consent so that the parties could review our initial award to determine if it would assist with the resolution of the other outstanding disputes. The 8oard was asked to retain jurisdiction in respect of these other matters. The class standards for Maintenance Electrician are appended to this award as Schedule ‘A’. Mr. Swibb (hereinafter referred to as the grievor) has been employed by the Ministry of Transportation since 1974. Since 1980, he has worked in the Traffic Maintenance Services Section as a Maintenance Electrician; He holds certification as a journeyman electrician. All of his time has been spent in District 4, which includes the Hamilton and Surlington areas. 1 - ..r‘. The grievor described the job of Maintenance Electrician as it has evolved over the years. The thrust of his evidence was that, as of the date of the grievance, he performed the duties outlined in the position specification dated January 14~, 1988. While that document postdates the grievance, the Board is satisfied that it accurately details the job performed by the grievor at the time material to these ,proceedings. We append the position specification to this award as Schedule ‘B’. Simply put, it was the position of the grievor that changes in electrical technology had altered his job in a qualitative sense such that the class standards, which were drafted in 1967, were now obsolete. It is. unnecessary to reproduce all of the evidence presented by the grievor. In our judgment,. the major changes in the job are as ~fol lows: (i) Highway lighting systems have become more sophisticated and complex over time. Initially, the grievor was called upon to install, repair and replace one hundred and twenty (120) volt incandescent lights. The grievor described such work as relatively straight forward. It involved a limited number of components including lamp, socket, switch and power source. Subsequently, a transition was made to mercury vapour lighting and then to low and high pressure.sodium lighting. These systems are of much higher voltage and are comprised of a larger, number of component parts. More recently! greater use has been made of variable lighting. This form of lighting requires programming by 2 the Maintenance Electrician so that the lntens:ty of light will -vary a~ccording to identified driving conditions. Reference was a;so m.sde in the evidence to the grievor’s work In respect of h;gh-msst lighting. (ii) A similar development has occurred vis a vis traffic signai.5. It was the grievor’s evidence that fixed time controllers were employed in or about 1967. The timing and sequence. of the signals were then pre-set and would not respond to changes in traffic flow or road conditions. The grievor stated that this type of system “had no brain” and simply performed “a set task”. Fixed time controllers were contrasted with the traffic actuated-computer operated system In use in 1987. The timing of.such a system is determined by the extent of traffic flow. Detectors that are installed in the highway send signals to controllers which, in turn, change the signal as necessary. This system also necessitates programming on the part of the Maintenance Electrician. This programming will identify the tasks to be performed and the periods of operation.’ The grievor adv.ised that he works with every component of this new system from power source to traffic heads. He also referred to his responsibilities in respect of “too-fast signs”. The grievor stated that much of this work required specific training in programmable controllers. He also expressed the opinion that electricians from outside of his office could not perform this type of labour without first being trained in the system. (iii) The Freeway Traffic Management System (F.T.M.S.) has 3 . been in use in the Burlington Skyway area since the early 1980’s. In total, it constitutes a highly sophisticated advisory system which monitors and maintains the flow of traffic. F.T.M.S. hasa number of components including surveillance, detection, and 1 ighting. The Maintenance Electrician works with all parts of the overall system. In this regard, the grievor testified that he installs, repairs and replaces the following items: cameras, television monitors, communication pedestals, amplifiers, joysticks, computer keyboards, loop detectors, changeable message signs, blank-out signs, variable lighting, photo cells, photo sensors, fibre optics, satellite compartments, and micro- processors. Some of these parts also fall within the scope,of work performed by the Electronic Technician. As with the signal systems noted above, the grievor r’outine.ly is called~ upon to program the changeable message signs and blank-out signs. This is done through use of a keyboard which permits him to eliminate old information land to input new instructions. It was the grievor’s evidence that fifty percent (50%) of his time is devoted to work relating to F.T.M.S. Such work.is unique to Di strict 4. We were 1,ed to believe that similar work in other Di stricts is contracted out. (i VI The changes and developments described above has led to th e use of more complex and sophisticated testing devices and, to.0 1 s . These include the spectrum analyzer, the protocol analyzer, and the osciliscope. Additionally, the grievor is engaged in the cathodic protection process which combats rusting 4 I----- on reinforcing bridge structures. He also works w:th explosive actuated tools and hydraulic aerial devices. In summary, the grievor estimated that ninety gercent (90%) of h:s duties involved contact with technology that did not exist as of 1967. (v) It is beyond dispute that traffic flow has increased over the years on 400 series highways. This has impacted the safety procedures utilized by the grievor. (vi) Lastly, the grievor has been called upon to inspect electrical work performed by external contractors to ensure it is in conformity with Ministry standards. The quantum of such work has increased since 1980. At that time, such task was largely performed by a sole employee. As indicated above, ‘it was the position of the Union that the cl~ass standards for Maintenance Electrician were obsolete given the developments in technology which have occurred Subsequent to their creation. It was submitted that, as a consequence, the grievor’s job has changed in a qualitative sense to the extent that it no longer falls within the scope of the class standards. The Board was referred to the Maintenance Electrician, Foreman standard. It was suggested that this might provide a better fit in respect of the duties actually performed by the grievor. Alternately, we were urged to order that the Employer find or create a more appropriate class standard within ninety (90) days of the release of our award. The usual order for retroactivity, together with interest, was also claimed. The 5 Board was referred to the following authbrities in support of the Union position: Cabeza et al., 0909/86, 0910/86, 0897/87 [Epstein); Brick et al., 564/80 (Samuels); Ontario Public Service Emolovees’ Union and Berry v. Ontario Min.istrv of Community and Social Services (1985), 15 O.A.C. 15 (Div. Ct.). In response, it was submitted by counsel for the Employer that the job performed by’the grievor continued to fall within the parameters of the class standards ,despite the fact technology had progressed since 1967. It was the position of the Employer that the grievor was still performing “electrician’s work- in the sense he was installing, maintaining, repairing and replacing electrical equipment. In su~bstance, we were asked to conclude that the grievor’s responsibilities have not changed qualitatively as a result of the technological developments described above. The Employer elected against calling evidence. It’s argument rested entirely on its interpretation of the class standards here in issue. The Board accepts the fact that the grievor remai ns an electrician and continues to perform what may be categorized as “e’lectrician’s work”. However, we do not consider,.this to be a complete answer to the grievance. Rather, we think that the actual duties performed must be assessed in order to determine whether they fit within the intended scope of the class standards. In other words, the Board accepts the suggestion of 6 the Union that a particular job may evolve with time such that It is no longer caught by the language of the class standards. The longevity of the standard is not determinative ;n this respect as. by definjtion, they are drafted with general wording in the contemplation that certain changes may occur !n the job. Nonetheless, it is clearly possible, as noted.in Cabeza, that a class standard may become so dated that it becomes outdated. Additionally, we note that the concept of “electrician’s work” is alluded to in both the Maintenance Electrician and the Maintenance Electrician, Foreman class standards. This reinforces our belief that there is no particular significance in the fact that the grievor continues to perform “electrician’s work”. What is of paramount importance is whether the actual electrical work engaged in falls within the language of the class standards. The Board has considered all of the evidence placed before us relating to the changes which have occurred in the grievor’s job. We are satisfied that the demands of such job, as performed at the time of the grievance, exceeds the expectations of the class standards. We think that the type of electrical work listed therein is more routine in nature than that now engaged in by the grievor. The Board finds it significant that no reference is made to the kind of sophisticated and complex components which the grievor now confronts on a daily basis. For example, the class standards do not mention micro-processors I . 7 or the need to program computerized electrical systems by way of keyboard input. Additionally, we conclude that the nature and extent of the complex work performed in respect of F.T.M.S. takes the grievor outside of the class standards. .Indeed, it is likely that this type of traffic system was not contemplated.by those who prepared the standards in 1967. In the final analysis, the Board has been persuaded that the grievor’s job has.changed in a qualitative sense. More particularly, we find that the complexity of the work performed, and the additional knowledge required to effectively complete same, goes well beyond the standards now before us. In this regard, we think it significant that the grievor has been required to take internal courses in respect of certain of the new technology, ie. micro-processors. Further, we note that those in the position are now .required to possess trade certification. “Acceptable equivalent combinatjon of training and experience” will no longer suffice. In reaching the above-stated.conclusion, the Board’has considered the grievor’s evidence as to the increase in traffic flow on 400 series highways and the greater time spent in inspection w&kV particularly that performed in respect of external contractors. We are not satisfied that the former development, by itself, justifies a reclassification. However, the increase in traffic has obviously led to the need to develop more complex traffic systems requiring more sophisticated electrical components. The latter function relating to inspections is closer in nature to the dut:es required of’a Maintenance Electrician, Foreman given that the inspection is of work psrformed by outside contractors. That type of insoection :s not specifically provided for in the Ma’ntenance Electrician class standards. F,or the above stated reasons, the Board concludes that the four (4) Maintenance Electricians covered by Mr. Swibb’s evidence are improperly classified. This award is restricted to this specific group as it would appear that their job functions in District 4 may be somewhat unique, particularly so in respect of the F.T.M.S. We have not been persuaded that the Maintenance Electrician, Foreman class standards constitute a more appropriate fit. While there is considerable overlap between the two (2) standards, the higher classification appears to focus largely on supervisory duties vis a vis other journeymen. This responsibility is not, in our opinion, a core function of the grievor’s job. The supervision engaged in by the grievor is primarily with respect to apprentices rather than other journeymen. Given our ultimate conclusion, the Employer is ordered.t.0 find or create a more appropriate classification within one:,hundred and twenty (120) days. We consider this to be a reasonable period in the circumstances of this.case. The Board remains seized should problems arise in the implementation of this award. Interest is to be payable on any amount found to be . owing to these grievors. As requested, the Board also remains seized in respect of the remaining grievances. For all of these reasons, the grievances are allowed. Dated at Windsor, Ontario this 23th day of .JXU~Y 1991. hY7.J. cJ& M.V. Watters, Vice-Chairperson ~< M c Mo.L1*Cg. J. McMamys, Member 10