HomeMy WebLinkAbout1987-1761.Maloney et al.90-11-05‘_ I
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRirEVANCE SETTLEMENT BOARD
BETWEEN:
OPSEU (Maloney et al)
Grievors
- and -
The Crown In Right Of Ontario (Ministry Of Natural Resources)
Employer
Before:
For the Grievors:
For the EICtDlOVer:
Hearina Dates:
J.H. Devlin Vice Chairperson S. Hennessy Member
A. Stapleton Member
N. Coleman
Counsel.
Gowling, Strathy & Henderson
Barristers & Solicitors
C. Slater
Senior Counsel
Human Resources Secretariat
Management Board of Cabinet
May 19, 1989
June 12, 1989 April 12, 1990
May 16, 1990
June 4, 1990
In July of 1987, when the grievances were filed, the
Grievsrs, Brian Maloney, Tom Van Roon and David Johnston, were
all employed has Timber Technicians and were working in the
Ministry's Blind River District. The Grievors claim that they
were improperly classified as Resource Technicians 3 ("RT 3") and
ought to be reclassified as Resource Technicians Senior 1 ("RTS
1") retroactive to January, of 1985. It is the position of the
Union that the work performed by the Grievors fits within the RTS
1 class standard but that, in any event, this work is
substantially similar to that performed by another employee in
the RTS 1 classification. This employee is Bill Pickard who
works in the Ministry's Temagami District.
The Blind River District where the Grievers were
employed when the grievances were filed, is one of seven
Districts in the Ministry's Northeastern Region. For purposes of
forest management, the District is divided into three units which
are designated by Order in Council. These units are Blind River,
Kirkwood and Peshu Lake. In 1987, there was one Unit Forester
assigned to the Peshu Lake unit and another who had
responsibility for the Blind River and Kirkwood units. At the
present time, there is one Unit Forester assigned to each
management unit and he is responsible for developing plans for
the management of timber resources within the unit. The Unit
Foresters report to the Forest Management Supervisor who has
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overall responsibility for forest management on a district-wide
basis. Also reporting to the Forest Management Supervisor is the
Forest Operations Manager who is responsible 'for ensuring that
work is carried out in accordance with the management plans
developed by the Unit Forester. Since 1973, the position of
Forest Operations Manager in the Blind River District has been
occupied by John Stewart.
The Grievors work in the Blind River and Peshu Lake
management units and report directly to Mr. Stewart. Prior to
1985, the Grievors were assigned to projects throughout both
units. In January of 1985, Mr. Stewart met with the Grievors and
assigned them specific areas of responsibility within the two
units. Mr. Stewart testified that he made the decision to assign
the Grievors.by location, rather than by project, to alleviate
the necessity of the Grievors having to travel long distances
throughout both units. According to Mr. Stewart, the areas of
assignment were determined as a matter of convenience, based on
road access. It was the evidence of Mr. Van Roon, on the other
hand, that the change in the method of assignment came about as a
result of,an increase in workload.
In January of 1985, Mr.. Maloney was assigned to work in
the Blind River unit and although there was some dispute as to
whether he was also assigned to the southern portion of the Peshu
Lake unit, it was agreed that Mr. Johnston was assigned to the
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western portion of Peshu Lake and Mr. Van Roon, to the eastern
portion of that unit. The evidence indicates that the Grievors
spend approximately 5 to 10% of their time on work outside their
designated areas of responsibility. Evidently, this is done to
ensure that the Grievors are,familiar with the projects being
perf,ormed in other areas. There are also certain projects, such
as aerial spraying and prescribed burns, which are assigned on a
district-wide basis. I
In the Kirkwood management unit, there is one RTS 1 who
reports directly to Mr. Stewart. There is also one RT 3 who
repo~rts to Mr. Stewart through the RTS 1. The RTS 1 in the
Kirkwood unit is Keith Hoback.
Forest management projects within each unit are
determined on the basis of long range planning and for this
purpose, the Unit Forester develops both a twenty year and a five
year management plan. These plans deal with matters such as
methods of harvesting and regeneration, tending, maintenance and
road access. The Grievors provide data to the Unit Forester for
the development of the management plans and, in this respect, Mr.
Van Roon described their role as being the "eyes and ears of the
Unit Forester in the field". The Grievors also perform field
work in connection with the location of roads: they prepare maps
and in consultation with the Unit Forester, they perform pre-cut
inspections. In addition, the Grievors provide data which is
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obtained from operational cruising, whereby a sample is taken of
a particular stand or species.
Based upon the management plans and data provided by
the Grievors, annual work plans are formulated. Planning begins
in the summer of each year for work to be performed the following
year. To some extent, the nature of the work depends upon site
preparation and the harvesting done in the previous year. In
formulating the annual work plan, project proposals are prepared
which include a budget estimate which must be established within
limits formulated forthe District. The proposals are prepared
on a document which was referred to as a "Form 1" which outlines
the nature and location of the work to be performed, the :
materials and manpower required as well as the transportation and
accommodation necessary for staff assigned to the project. Also
included is an estimate of the cost of materials, 'manpower and
equipment.
The Grievors recommend the inclusion of particular
projects in the annual work plan and may also be asked by the
Unit Forester or the Forest Operations Manager to provide cost
estimates in relation to these projects. Mr. Johnston testified
that, on one occasion, he also completed a Form 1. He agreed,
however, that this was unusual although it is common for the
Grievors to make recommendations with regard to particular
projects and to provide cost estimates as requested. These
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estimates may then be accepted or rejected by the Unit Forester
and the Forest Operations Manager.
Mr. Stewart testified that, in fact, he and the Unit
Forester prepare the majority of the cost estimates. He agreed,
however, that in the case of routine projects, estimates provided
by the Grievors may simply be transferred onto the Form 1. The
Form 1 is then signed by the Unit Forester, the Forest Operations
Manager and the Forest Management Supervisor.
The Unit Forester is responsible for establishing
priorities for the various projects within each unit and may seek
input from the Grievors in thisregard. The-Unit Forester then
meets with the Forest Operations Manager and the Forest
Management Supervisor to establish project priorities on a
district-wide basis.
The annual work plan and budget estimate are reviewed
by the Ministry's Regional staff and funds are allocated by
project. Once projects are approved and funds available, Mr.
Stewart assigns the projects within the Blind River and Peshu
Lake management units to the Grievors who are then responsible
for their implementation. These projects include timber
cruising, license boundary marking, site preparation, tree
planting, tending and assessments. The nature of the Grievers'
duties may vary depending both upon the type of work and whether
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the work is performed by Ministry crews or by private
contractors.
Where the work is performed by Ministry crews, which
was the case with tree planting projects prior to 1985, the
Grievors are responsible for assigning and co-ordinating the work
of the crew and ensuring that the work is performed fin a
satisfactory manner. Prior to 1986, the Grievors also hired
seasonal staff, but as seasonal employees now have seniority
rights under the Collective Agreement, the Grievors are involved
in recalling these employees to work. Where appropriate, the
Grievors also recommend discipline of seasonal employees to the
Forest Operations Manager.,
Certain projects are carried out by private contractors
which has been the case with tree planting projects since 1985.
In this regard, Mr. Van Roon testified that in 1986, he was
responsible for the tendering process in connection with such a,
project. With the assistance of precedents, he prepared the
tender documents, including the agreement and the schedules which
were submitted to Mr. Stewart for approval. He also prepared a
viewing package as well as the advertisement for the newspaper
and established a closing date for tenders.. He then kept
appropriate records of the tenders received as it is the policy
of the Ministry to accept the lowest bid which meets the tender
requirements. Mr. Van Roon was also designated as the Crown
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representative for the project and, in this capacity, represented
the interests of the Crown.
On tree planting or other projects performed by private
contractors, the Grievors are responsible for monitoring the work
and ensuring that it is performed in accordance with Ministry
standards. In the event of any serious difficulty with a
particular project,, the Grievors consult the Forest Operations
Manayer. The Grievors also review the invoices submitted by the
contractors and approve payment based upon the work performed.
It would appear that the invoices must also be signed by the Unit
Forester or the Forest Operations Manager. Since 1987, tree
planting projects have been carried out on a regional basis.
The Grievors formally report to the Forest Operations
Manager on a monthly basis with respect to the projects for which
they are responsible. Informal reporting, however, may occur
more frequently. On a monthly basis, the Grievors report on the
progress of each project and the funds expended to date. Within
certain established limits, spending for individual projects is
approved by purchase order. In this regard, the Grievors arrange
for preparation of the purchase order which must be signed by
either the Unit Forester, the Forest Operations Manager or the
Forest Management Supervisor, each of whom has been designated as
a Budget Control Officer. It is the function of the Budget
Control Officer to ensure that each expenditure is within
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budgetary limits. When the goods are received, the Grievors sign
the invoice to verify the receipt of the goods which were
ordered.
In their monthly reports, the Grievors monitor spending
on each project and advise the Forest Operations Manager in the
event that it appears that there will not be sufficient funds to
complete the project. It is then up to the Forest Operations
Manager to decide whether to discontinue work, to seek further
funding or to reallocate funds between projects. It is only Mr.
Stewart who has authority to reallocate funds between projects,
although the Grievors may make recommendations in this regard.
As indicated at the outset, the Union claims not only
that the work performed by the Grievors is encompassed by the RTS
1 class. standard but that this work is also substantially similar
to that performed by another employee in the RTS 1
classification, namely Bill Pickard. Mr. Pickard works in the
Latchford management unit, which is one of two units in the
Ministry's Temagami District. He has held his current position
since July of 1985.
Mr. Pickard testified that in the Latchford unit, he
assists the Unit Forester in the development of the,management
plans and, in particular, with respect to the allocation of
stands to be harvested. He also assists in the preparation of
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annual work plans and in this regard, Mr. Pickard testified that
he ar;d the Unit Forester share responsibility for preparing the
Form l's for the unit. Mr. Pickard and the Unit Forester also
establish priorities for projects within the unit and the Forest
Operations Manager and the Forest Management Supervisor then
priorize the projects on a district-wide basis. To date, Mr.
Pickard has also been involved in preparing three agreements with
private landowners.
Mr. Pickard testified that his work differs from that
of the RT 3's.in the Latchford unit in that he spends
considerably more of his time engaged in planning with the Unit
Forester.. He also schedules and assigns wprk to the RT 3's who
spend a significant amount of their time in the field. While Mr.
Pickard spends 70 to 80% of'his time in the office, he estimated
that the RT 3's spend approximately 60% of their time in the
field. Mr. Pickard also reviews reports prepared by the RT 3's
in connection with field operations which he then passes on to
the Unit Forester.
As to the events leading up to the filing of the
grievances, Mr. Van Roon testified that he first raised the issue
of reclassification in'1978. At that time, he questioned
management as to why he was classified as an RT 3 when he was
performing essentially the same work as the RTS 1 in the Kirkwood
unit. Evidently, at about that time, there was also a vacancy in
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the RTS 1 position in the Kirkwood unit and although Mr. Van Roon
considered applying for this position, he did not do so. He
testified, however, that he continued to raise the issue of
reclassification but, on each occasion, was advised by Mr.
Stewart that no funds were available for this purpose.
Nevertheless, when certain training positions were subsequently
established at the RTS 1 level, Mr. Van Roon concluded that, in
fact, the necessary funds were available. The present grievances
were filed in July of 1987.
It is the position of the Union that the Grievors are
improperly classified as Resource Technicians 3 and should be
reclassified.as Resource Technicians Senior 1 retroactive to :
January of 1985. It is the position of the Employer that the
Grievors are properly classified and that their duties are
accurately described in the RT 3 class standard. The RT 3 and
RTS 1 class standards together with the accompanying preambles
are as follows:
PREAMBLE
RESOURCE TECHNICIAN SERIES
This series covers the positions of employees engaged in the
performance of operational duties in any one or more of the
specialised services, e.g., Forest Protection, Timber, Fish.and
Wildlife; Lands, Parks, Research, etc.
Employees in positions allocated to this series may perform
a variety of duties ranging from those of a manual nature
requiring only a relatively elementary understanding of natural resource ~management to those of a technical nature requiring
independent judgement.
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Entry into this series for candidates who are graudates
[sic] of an approved Technical School in Resource Management glz
an approved related discipline,is at the Resource Technician 2
level. At this level such employees receive training in
prac~tical aspects of theories studied and, as experience is
gainmad, daily supervision is reduced to instructions covering
specialised technical problems.
Positions involving full time performance of Fish and
Wildlife management and/or enforcement duties are restricted to
employees who are graduates of an approved Technical School in
Resource Management.
Research Branch positions allocated to the third level in
this series will normally be underfilled by one grade for a
period not longer than one year, to allow for the necessary "on
the job" training in specific research aspects of the duties
invo~lved.
Positions will be allocated to a specific level in this
class series only when u the requirements of that level have
been fulfilled.
THIS SERIES
Functional field equivalent of a Ministry Division, e.g.
Forests, Mines.! Fish and Wildlife, Parks, Conservation Authorities, Field Services, Lands.
-ERIA FOR RANKING FISH HATCH-
Type A - year round trout culture.
Type B - seasonal pond culture.
Type C - trough or jar culture.
!ZiU.T.EBI.A FOR RANKING
1. Camper days
2. User Days
3. Large natural environment 4. Complexity because of special situations.
RESOURCE TECHNICIAN 3
This class covers positions of employees performing more
complex demanding and responsible technical duties containing
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considerable latitude for decision making e.g. check scaling;
compiling lake development data: training fire crew: operating type 8VC'8 parks or type "C" hatcheries: carrying out Fish and
Wildlife management and/or enforcement work: gathering,
assembling and compiling technical or scientific data, preparing
technical reports and/or plans: assessing technical needs of
management or scientific projects and submitting technical
recommendations, etc. . in any assigned area of responsibility.
They may supervise and/or train regular employees or take
charge of groups of casual employees and, in this context,
organise and schedule activities within the qeneral'framework of
laid down plans or instructions and assume responsibility for the
quality and quantity of production and for the work performance
of assigned staff.
SKILLS AND KNOWLEDGE REOUIRED:
Ability to organise projects,and supervise implementation:
initiative and ability to assimilate new techniques to be applied
in a variety of situations: good understanding of resource
management principles.
PREAMBLE
RESOURCE.TECHNICIAN. SENIOR SERIES
This series covers the positions of Senior Technicians in
the field of natural resources management. Some positions are
those of specialists concerned with planning, the provision of
functional advice, policy and standards control: other positions
are those of supervisors involved in the implementation of varied
and complex resource management programmes. The basic
requirement for both groups is a thorough knowledge of the
principles of resource management and technical expertise.
.The working level of non-professional district staff
specialist positions is at the Resource Technician, Senior 3
level. However, positions may be allocated above or below this
level, if, in the assessment of senior management, the 'priority
given to the management objectives of the service(s) places
greater or lesser demands on the position than is typically found
on a province-wide basis. The reasons for such an assessment
'must be meaningfully documented by senior management in each
instance. In any such allocation, the following two conditions
must be met:
(a) The number of positions & the Resource Technician, Senior 3
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level in any individual service must be greater than the
number of positions a this level.
(b) The number of positions & the Resource Technician, Senior 3
level in any individual service must be greater than the
number of positions ~&JW this level.
Research Branch positions allocated to the first and second
level in this series will normally be underfilled by one grade
for a period not longer than one year, to allow for necessary "on
the job" training in specific research aspects of the duties
involved.
Positions of Senior Technicians assigned to the Head Office
or Regional Offices are allocated to specific levels in this
class series on a comparative basis with district positions in relation to such factors as planning, standards control, policy
interpretation and implementation, policy recommendations, etc.
Positions will be allocated to a specific level in this class series only when m the requirements of that level have
been fulfilled.
ONS FQR USE h!ZlIUXTHXS SE=
. .Servlce:
Functional field equivalent of a Ministry Division, e.g.
Forests, Mines Fish and Wildlife, Parks Conservation Authorities, Field Services, Lands.
m;ervice:
Functional field equivalent of a Ministry Branch, e.g.
Forest Management, Mineral Resources Management, Wildlife
Management, Parks Management, Fire Control, Lands Administration.
mm:
Planning over a relatively short period where the major
factors are provided, e.g. objectives, specific targets,
expenditure allotment, time limitations, areas,, etc.
mranae Ooeratw:
Planning involving participation of field offices and the Head Office in the setting of Regional and/or District
objectives: developing and establishing alternatives for meeting
these objectives: analysing these alternatives: recommending
the course to follow: etc.
Research Station:
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A formal unit or organisation with permanently assigned
regular and/or probationary staff of Research Scientists and non-
professional research assistants, conducting, on a year-round
basis, scientific work assigned by the Research Branch.
CRITERIA FOR RANKING FISH HATCHERIES
Type A - year round trout culture.
Type B - seasonal pond culture.
Type C - trough or jar culture.
CRITERIA FOR RANKING PARKS
1. Camper days
2. User days
3. Large natural environment
4. Complexity because of special situations.
CRITERIA FOR RANKING TREE NURSERIES:
Type A - Annual production target of at least 10
million seedlings or an annual production of
at least 6 million seedlings plus production
of special stocks plus.minimum of 10 species
produced.
Type B - does not meet the above requirement.
RESOURCES TECHNICIAN. SENIOR 1
This class covers positions of employees responsible on a
district-wide basis for technical control of's ,sub-service; OR
who act as senior assistants to district,technical or
professional specialists in determining methods and techniques,
implementing policy and controlling standards in one or more
services on a district-wide basis.
Also included are positions of employees who assist
professional staff e.g. Foresters, Biologists, etc., in the
management of Forest Units, Lake Units, Private Lands, etc. They
participate in th deveIopment of management plans, prepare
initial agreements with private land owners, prepare work plans
and annual budget estimates, organise and schedule units.work and
exercise budget controls.
Positions of supervisors who on a year-round basis have
administrative responsibility for a formal unit of organisation
(functional or territorial) and who, in this context, prepare
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works plans and annual budget estimates, organise and schedule the
unit's work and exercise budget controls, are also allocated to
this level. Positions of employees in charge of type "B" parks
or type "Bn hatcheries or second-in-charge of type "B" tree
nurseries, are included at this level.
In the Research Branch, this class covers positions of non-
professional, fully trained and experienced research assistants
in various disciplines of scientific research who under direction
of a Research Scientist, carry out assign technological phases of
research and have full responsibility for the validity of
obtained or processed data and the preparation of reports
involving preliminary analysis of such data.
=LS AND KNOWLEDGE REOUIRED:
1. Supervisory ability; some administrative ability: ability
to co-ordinate several projects and to prepare work plans:
personal suitability.
2. Extensive knowledge and thorough understanding of
objectives, methods and techniques applicable to the
assigned works area: good working knowledge of relevant
legislation.
In our view, the Grievors perform duties of the nature
generally described in .the RT 3 class standard. In particular,
they perform demanding and responsible technical duties involving
considerable latitude for decision making. They also gather,
assemble and compile technical data and reports and submit
technical recommendations within their assigned areas of
responsibility. In addition, in implementing the projects to
which they are assigned, they are responsible for a crew of
seasonal employees: they assign and co-ordinate the work of the
crew and are responsible for the quality and quantity of the work
performed.
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The real issue is whether the Grievers' duties are more
accurately described by the RTS 1 class standard. This standard
covers a number of different positions and it was acknowledged
that it is only the positions in paragraphs 2 and 3 of the
standard which could apply to the Grievors. Paragraph 2 covers
the positions of employees who assist Foresters in the management
of forest units. Such employees participate in the development
of management plans, prepare initial agreements with private
landowners, prepare work plans and annual budget estimates,
organize and schedule the unit's work and exercise budget
controls.
In this case, the Grievors collect data for the five
year and twenty year management plans and they provide
information to the Unit Forester based upon their observations in
the field. In our view, however, the evidence does not indicate
that the Grievors participate in the development of management
plans. Instead, the Grievors provide data which forms the basis
for planning decisions which are made by the Unit Forester.
Although the Grievors have not prepared agreements with
private landowners, we do not find this to be fatal to their
claim in this case. The Grievors do prepare documents in
connection with the tendering process which may involve
comparable responsibility. In any event, the evidence indicates
that no agreements with private landowners.have been negotiated
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in the Blind River and Peshu units. Evidently, there is only one
such agreement in the Blind River District and this agreement was
nego'ziated in the Kirkwood unit by the RTS 1, Mr. Hoback.
With respect to the preparation of work plans and
budget estimates, the evidence indicates that the Grievors make
recommendations with regard to the inclusion of individual
projects in the annual work plan. They also prepare cost
estimates for such projects as requested and in.the case of
routine projects, these estimates may simply be transferred onto
the Form 1. The evidence indicates, however, that it was only on
one occasion that Mr. Johnston actually prepared a Form 1 and it
was acknowledged that this was unusual. Moreover, although the
Grievors may be consulted with respect to project priorities, it
is the Unit Foresterwho is'responsible for priorizinq projects
within each unit. Therefore, while the Grievors provide input
into the annual work plan and budget estimate, we do not find
that they "prepare" the work plan and budget estimate as provided
in the RTS 1 class standard.
Furthermore, with the exception of Mr. Maloney, whose
area of assignment is in dispute, it cannot be said that the
Grievors organise and schedule the unit'swork. In the Board's
view,. the use of the word "unit" is intended as a reference to
the management unit and in this case, Mr. Van Roon and Mr.
Johnston are assigned responsibility for projects in the eastern
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and western portions of the Peshu Lake management unit,
respectively. As a result, it cannot be said that they organise
and schedule the unit's work.
Although Mr. Maloney is assigned to the Blind River
unit, it is not clear that he has responsibility for organising
and scheduling the unit's work rather thanfor implementing
forest managemenizprojects within the unit which is one of the
duties of the RT 3. In any event, even if Mr. Maloney could
satisfy this final criter'ion for positions in paragraph 2 of the
RTS 1 class standard, neither he nor Messrs. Van Roon and
Johnston perform other core duties of these positions. Although
the Grievers sign invoices and monitor expenditures on individual
projects when preparing their monthly reports, on the evidence,
the Board is not satisfied that this is sufficient to constitute
lass the exercise of "budget controls" within the meaning of the c
standard.
Paragraph 3 of the RTS 1 class standard covers the
positions of supervisors who have responsibility for a "formal
unit of organisation". Although this. particular term is not
defined, the evidence of Mr. Stewart suggests that there is
nothing formal about the Grievers' current assignments and that
these were made as a.matter of convenience simply to avoid the
Grievors.having to travel long distances throughout ~the Blind
River and Peshu units. In any event, for the reasons set out
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above, we do not find that the Grievors perform the specific
duties referred to in paragraph 3. In particular, they do not
prepare work plans and budget estimates, nor do they exercise
budget controls. Subject to the qualification referred to with
regard to Mr. Maloney, we also find that the Grievors do not
organise and schedule the unit's work.
The next issue is whether the work performed'by the
Grievors is substantially similar to that performed by Mr.
Pickard. Having considered the evidence with care, we are of the
view that it is not. Unlike the Grievors, Mr. Pickard does
participate in the development of the management plans in the
Latchford unit: While Mr. Van Roon described the Grievers' role
as being the "eyes and ears of the Unit Forester in the field",
Mr. Pickard utilises data obtained in the field and together with
the Unit Forester, he is involved in management planning for the
unit. Although Mr. Pickard has also been involved in drafting
three agreements with private landowners, for the reasons set out
previously, we do not find this duty to be determinative of the
Grievers' claim in this case.
In terms of the annual work plans and budget estimates,
again, the evidence indicates that Mr. Pickard's involvement is
significantly different from that of the Grievors. In this
regard, Mr. Pickard actually prepares one half of the Form l's
for the Latchford unit and he and the Unit Forester'priorize the
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projects within the unit for .purposes of the annual work plan.
Mr. Pickard is also involved in organising and scheduling the
unit's work and directs the RT 3% who are then responsible for
implementing projects within the unit. Accordingly, and although
Mr. Pickard evidently does not exercise budget controls, there
are other significant differences between the work performed by
the Grievors and that of Mr. Pickard.
In the result and having considered the evidence as a
whole, the Board cannot conclude that the Grievors are improperly
classified. The work performed by the Grievors fits within the
RT 3 class standard and does not meet the requirements of the RTS
lclass standard. Moreover, the Grievors have failed to
demonstrate that their work is substantially'similar to'that of
an employee occupying the RTS 1 classification. For these
reasons, the grievances of Messrs. Maloney, Van Roon and Johnston
are hereby dismissed.
DATED AT TORONTO, this 5.th day of November, 1990.
/ \c-&A=&ypJc~\
Vice-Chairperson, Jane Devlin
*I I Dissent” (Dissent to follow)
Member , S. R. Hennessy