HomeMy WebLinkAbout1987-1985.Nielsen.88-11-22ONTAR!O LMPLOYESOELA CmJHoNNt
CROWNEMP‘O”EES DCL’ONlARC
C‘.RIFVANCE -...s-...--- COMMISSION DE
SETTLEMENT ii ~GLEMENT
BOARD DES GRIEF’S
i9awa7
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAI~NING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievor:
For the Employer:
Hearings: -
GPSEU(D. Nielsen)
and
The Crown in Right of Ontario
(Ministry of Natural ReSOUfCeS)
M.V. Watters
G. Nabi
P. Camp
Vice-Chairperson
Member
IQmber
C. Hoffley
Counsel
Gowling & Henderson
Barristers and Solicitors --
K. Paul
Staff Relations Officer
Ministry of Natural Resources
Llarch 18, 1988
June 20, 1988
Grievor
Employer
DECISION
At the time material to this proceeding, the grievor was a
seaso,nal employee in the Fort Frances District OE the Ministry of
Natural Resources. He occupied the position of Timber Technician
which was classified as a Resource Technician 3. The grievor was
laid off from :his position in August, 1987, which was some seven
months prior to the expiry of his seasonal contract. k.o:~:sz
seasonal employee, Bev Oltsher, who had the same position title
and classification, was retained notwithstanding that she h,s.d
less seniority than the grievor. This development led directly
to the fili‘ng of the instance grievance which asserted a
violation of article 3.20.2 of the collective agreement. This
article reads as follows:
JOB ‘SECURITY
3.20.2 Where the Employer reduces the number of
seasonal employees prior to the expiry
date of employmept specified in the
contracts of employment, seasonal emplovees
in the same position shall be laid off in
reverse order of seniority. .(Emphasis ours)
.*
The sole issue before this board is whether :he grievor and
MS. Oltsher occupied “the same position” for purposes of the
above cited article. If they in fact occupied the same position
_I-
at the time of lay off, the employer clearly violated~ the
coIlective agreement by failing to recognize and respect the
grievor’s greater seniorify. Conversely, if the positions were
distinct, the employer was not under a co.ntracJual obligation to
first lay off ?Is. Oltsher. The parties, quite naturally,
differed in their assessments as to the nature of the respective
positions. Simply put, the union claimed that they were
sufficiently similer such that effect shoxld have been given Lo
article 3.20.2. The employer, in respons’z, asserted that they
were dissimiiar and that, cbnsequeotly, the article i;: question
had no application.
A substantial amo,unt of evidence was presented to the board
touching the issue ‘in d,ispute. Much ‘of ir,was technical in
nature and addressed :he broad spectrum of forest management
techniques empLoyed in Northern Ontario. We have considered all
of th.is evidence, both oral and documentary, in arriving at our
conclusion. We do not, however, intend to reproduce it all in
this award. Rather, we have restricted our comment to those
pieces of evidence which we consider to be nest material to the *
resolution of the. issue before US.
. .
It is beyond dispute thdt there are certain similarities
b’etween the two positions. As noted above, both are described as
Timber Technicians and are classified as Resource Technicians~3.
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Additional
in the fie
y, both incumbents work in’ the Fort Frances District
d of forest management. These common features do not,
however, determine the ultimate resolution of the matter.. This
board is compelled to undertake a more thorough investigation and
analysis of the duties perform&d in each pdsition and thereafter
to a6e.es.s whether the positions can be considered as “the same
position” for purposes of~article 3.20.2 of the collective
agreement. In this regard, we would concur with the approach as
stated in FLrniss, G.S.E. 602,‘86 (Slone) at pages 10-11:
“h’e do not suggest tha: iz every case the “position”
is equivalent to a particular job :itle. A title is
nothing more than a title, although it provides some
evidence that the substance of a particular job is
similar to the substance of Fnother job bearing the
same title. In many ca.ses th,ere will be little
doubt as to what is a position; in other cases, it
will be a factual question as to whether or not the
substance of the job and the nsture of then duties.
are sufficiently similar to be considered the same
position.”
T~his approach, when applied to tile circumstances of this cese,
requires that we look to more than just the job titie when
determining the issue as to similarity of positions.
The purpose and duties of the respective’posi:ions, as
described in the position specifications, .:re as follows:
-3-
Grievor’s Position:
Purpose of position - to assist in_ planning, organising and
implementing forest management work programs on Crown Land and on
assigned management units.
Duties and related tasks
Inspects timber stands no:ing tree quality, site soi
type, .etc. and recommends harvest method, follow-up
silvicultural treatmen:.
Delineates on ground approved licence areas, shoreline
reserves, wildlife habitat areas, seed trees, etc. as
required under harvest prescription.
I.nspects cutting operation to determine adher,ecce to
cutting conditions, submits reports, makes recommendations
on any infractions encountered.
Inspects areas after cutting, verifying proposed
silvicultural treatment, making modifications if
necessary.
Supervises site preparation and tree planting projects,
ensuring quality production and proper procedures are
adhered to, reporting same along wtth costs to supervisor.
Co-ordinates (team leader) regeneration as.sessment crews,
operational cruising crews, arranging transportation
(aircraft, boats, vehicles), accommodation, d.istributing
of crews to specific areas, etc.
Completes project reports for silvicultural projects (S.I.S.
system), assists in aerial herbicides spray program, mixes
chemicals, loads aircraft and keeps records of same.
Assists with maintenance of siIvicultura1 and cutover
ledgers, maps.
Other duties as assigned.
(Exhibit 5)
_s
Bev Oltsher’s Position
Purpose of position - To assist forester in FMA support function
analysis of management planning function and .auditing FNA
silvicultural work.
Duties end related tasks
1) Carries out tasks in audit of silvicultural work invoiced
under the FMA for approval by District Crown Representa-
tive by, performing duties such as:
- inspecting field projects.
- Confirming area treated through field measurement, or
examination of supplementary aerial photography.
7
Checking operations for co.nformity wi:h agreement.
2) Assists unit fbrester in analysing Fanageme,nt plans b’y
performing duties such as:
- Compiling and summarising data.
3) Assists unit forestet in analyzing annual work schedule
and annual reports by performing duties such as:
- Compiling and summarising data.
- Checking for conformity to management plan.
- Preparing cutting approvals for areas to be harvested.
4) Co-ordinates unit DCL program by performing duties such as:
-.Negotiating with company staff allocated areas for
DCL operations, in conjunction with unit forester.
- Representing MNR on routine matters with DCL licensee.
‘- Delineating on ground, boundaries of licences areas.
5) Assists in management planning by performing duties such as:
- Condircting field surveys of areas of concern (in
conjunction. with lands and other services).
- Carrying out cut-inspections to ensure campli?nce with
Crown Timber Act, Cutting ApprovaL*and Work Permit.
- Maintaining silvicultural.and cutover reports and
ledgers (computerised). \
- Maintaining recqrd of surveys and making recommendations.
- Acting as team leader of an assessment crew carrying out
Field rurveys to deternine ‘Frrc-to-gr.sx’ itatus for
inclusi.on in MAD calculation.
-j-
I - Prep’aring displays for public information sessions.
6) Assisting in implementing Forest Nana.gement LJork Program
by performing duties such as:
- Supervising :itr preparation, tree planting and stand
improvement projec:s C./W reports and maps.
- Working on aerial spray proj.?cts.
- Performing cut inspections to determine adherence to
conditions and makes recommendations for any
infractions encountered.
7) As assigned by performing duties such as:
- Giving :z!ks on f’~rest managenen: to school children:.
- Providing input into FNA silvicultcra1 program by
providing practical advice to company staff.
- As assigned.
(Exhibit 6)
Neither the grievor nor the union serious:v dispute the accuracy ,
of these specifications.
?lr . A. M/atiece, Mr. A. Wickstromand Mr. E. Kaufman gave
evidence on behalf of the employer. !4r. %atiece, as Forest
!lanagement Supervisor, is responsible for al! forest manageme~nt
activities within the district and for the ultimate sup$rvision
of all timber staff. Mr. Wickstrom, as Forest Operation
Manager, is responsible for all operational functions in the
Crown portion of the district and at the material time served as
. .
the grievor’s immediate svpervisor. Mr. Kaufman is rhe Unit
Forester for those lands subject to the Forest ?fanagenent
Agreement and is B.ev Oltsher’s immediate supervisor. AI.1 of
these gentlemen expressed the opinion that the positions in
question were separate and distinct. Alter examining the
evidence and argument presented, this board is inclined to agree
with their assessment for the reasons stated below.
As noted in Exhibit '5', the grievor ~zngaged in the
fol .lowing tictivi:ies:
(i)
(ii)
.(iii)
(iv)
(v)
(vi)
inspection of forested land prior :o licensir,g;
mark~ing of ayeas;
inspections
inspections
recommendat
supervision
inspection;
xhiie cutti’ng opere:ions’ are in progress;’
after the conclusion of cutting operations;~
ion of follow-up silvicultural :teatmeni;
of such tzeatmen: with follow-up
(vii) reporting on completion of ground inspections;
(viii 1 herbicide spray programs;
(ix) recommendations on infractions encountered.
In our estinatioc, the.se duties may be considered as being more
“operational” in nature than those performed by Xs. Oltsher Jhich
\
are discussed below. The grievor himself stated that in
_s
performing these tasks in the Rainy Lake Management Unit, he was
in essence “carrying out field work for the forester”. At
another point in his evidence, he stated that T’imber Technicians
-?-
in his position served “as the eyes and ear:; of the forester”.
We have little doubt that his positibn was more “hands-on” than
that of ?ls. Oltsher. This impression was reinforced by the
statistics provided to us by the employer. T!lese disclosed that
“opera:ional activities” comprised eighty-three percent (83%) of
the grievorls job in 1986-87 and sixty-five percent (65%),of same
in 1987-88. In contrast, during the identical period the
corresponding figures for Ms; Oltsher were three percent !3”) and
four:een percen: (14%). This -narked differsnce, which we
consider to be iignificznt, did .not aiwa>rs exis:. Indeed: as
recently as 198Li-85 the position now occup~ird by Ms. Oltsher was
perceived as being ninety-nine percent (99%) operetional in terms
of the duti es performed. The reason for this dramatic shift in
job emphasi s was the executicn in March, 19,63 of a Forest
Management Agreement betwee? the Crown and Bsise Cascade.
Forest Management Agreements are provided for by the Crown --
Timber Act and have been described as follows:
I, . * . contractual agreements between the Crown and
,certain forest companies whereby a company undertakes
forest manageme.nt activi:ies.(roads,, harvesting,
regeneration and forest tending) on behalf of the
Ministry of ‘Natural Resources.” (Exhibi~t 15)
Their ultimate purpose is to provide for a continuous supply 0
forest products co the agreemen: holder and :o ensure that the
forests are harvested ;nd regenerated ox i: “sustained yield
-R-
basis”. These agreements have a duration of twenty years but, are
subject to review and possible revision at five year intervals.
The distinctive feature o.f such an agreement is that the forest
company in question assumes responsibility thereunder for forest
regenerat,ion. This method of forest management does not apply to
Crowns Wanagement Units such as Rainy Lake. There, the Kinis~try
of Natural Resources remains primarily responsible for both
harvesting and regeneration, albeit that such work may be subject
to the tender process.
The Boise Cascade agreement served as a catalyst,for change
in the Oltsher position. After a brief phase-in period, the
iacumbent assumed what may be referred to as an “audit fonction”.
Specifically, she~was required to assist -the unit forester with
the following tasks:
(i) audit of silvicultural work i,nvoiced under the
Forest Yanagement Agreement;
(ii) analysis of management plans;
(iii) analysis of annual work schedule and anr~ual
reports prepared by the company;
(iv) management planning;
(v) maintain records and assess the work of the
agreement holder;
(vii) inspection of company operations;
(viii) pfovision of advice to company staff.
It is of some importance to emphasize that these duties focus
almost exclusively on the lands subject to the Fo,rest Management
Agreement.
understand
comprehens
Of necessity, the position demands an in-depth
ng of the agreement, which is both lengthy and
ve. Such requirement is not present in respect of
employees such as tire grievor , xho work in the Crown Units. It
would not, in our estimation be inaccurate to describe the
position ads .being ~more “spec alized” than was previously the case.
Eaving reviewed the transformatipn in the ?osi:ion, we have no
dol;bt chat soch may be categorized as a significant and
substantial change ia job function.
The grievor initially asserted that .he had performed the
“full job” performed by Xs. Oltsher. He subsequently conceded,
however, that he had never reviewed a forest manaiement agreement
or plan, assisted the forester with a review of the company’s
annual report or work schedule, negotiated with the company or
given~ silvicultural a,dvice to its staff, or been involved with a
contract covering all aspects of forest management. He further
stated in cross-examination that he did not know “specifically”
what this position “required”. After assessing the grievor’s
evidence, the board is unable to conclude-‘that he has performed
the core functions of Ms. Oltsher’s position. Me recognize that
some overlap of tasks exists between these two positions.
Witnesses for the employer estimated suc!~ ovel-lap as being
-! II-
approximately fifteen percent (15%). While we’ cannot be as
precise, the board agrees that it is insufficient to render,the
positions substantially similar for purposes of article 3.20-Z of
:he collective agreement. In this regard, we have noted the
employer’s evidence that a significant period of training would
be required to acquaint the grievor with the responsibilities
exercised by ?:s. Oltsher. We were given .no reason to doubt the
acc.uracy of such assertion,
Ir. concluding th;t the two positions are distinct, we have
also considered the fact that they have separate position
specifications. This reflects the development of, ar.d change to,
the Oltsher position as described above. Additionally, both
incumbents report to different supervisors. At the material time,
t!?e grievor reported to Mr. Wickstron. ?Is. Oltsher reports to
#r. Kaufman , the Unit Forester for the Forest Management
Agreement. Indeed, she is the only Timber Technician (Resource’
Technician 3) who so reports. This further suggests that there
is a substantial dissimilarity in the jobs in question.
The board was also presented with much evidence relating to
the dif,ferences in the day-to-day work performed by these two
employees. The differences related, inter alia, ‘to the extent of
field work, the relarionship with staff of the company or the
contractor, the method of enforcement of contractual obligations,
n :I 8~1 t il 5 nat”rE of the contract b?ing conitored. we are not
inclined to repeat all of such evidence in that the differences
alluded to are, for the most part, reflective of the fundamental
difference referred ‘to above. That is, the position held by the
‘grievor’is primarily operational, while that held by Ms. Oltsher
provides for an audit type function. We see a material
distinction between the former’s work in respect of one item
contracts of short duration and the latt.er’s work in regards to a
comprehensive and long tern: agreem~ent coyerin all ar’eas of
t3re5 t manegenent.
In summary, we have not been persuaded that the positions
may be considered ads “the same position” for purpos6s of the
administration of article 3.20.2. We therefore find that the
employer did not violate the collective agreement in retaining
Ms. Oltsher at the time of the grievor’s lay off .in August, 1987.
The grievance is consequently denied.
DATED at Windsor, Ontario, this 22nd day of Nowmbrr , 1988.
M. V. watters, Vice-Chairperson
G. Nabi, Member
DISSENl
~This grievance was hro?lght by t.he Union dn behalf of its
membe.r, Daryl Niel.sen i:ho claims to have bee11 improperly laid
-~
Or:..
Certain facts in the case are not in dispute. it is clear
that :ke grievor was laid-off ;n iugust 19Ei vi-ile I\ls Bei
O!.tSher, ail enployee ii i t h less senioiir~y, :<a,~ not. It is alsd
clear that Article 3~.?0.2 of the Agreement would be violated by
the lay-off if .we find that the Brievor and the junior employee
both held “the same position”.
The language oi this article is somewhat ~in~SUZ?l, but the
intention of the Parties is fairly apparent. After all, the
article is in a section of the Agreement entitled “Job Security”.
The essence of this grievance is whether the grievor and Ms
Bev Oltsher occupied “the same position” at the time the grievor
was laid off. ?l! coll,eagues interpret ~this to mean that at the
critical tim,e, the grievor had to be performing “the core ~.I
ftlnc’tions” of then position held by the person the grievor seeks
to “bump”. This is where I take issue and respcctfull~y di~sagree.
It is my view that such an interpretation alt.ers, amends, adds to
2.
and enlarges the collectjve ayreemeot~. 'rile i.anguage of Lh e
agreement seems clear and unambiguous. In fact, no argument was
made that the artic!e was either patently or latently ambiguous.
In my view, it is quite proper for us to take. jurisdiction
over the issue of whether the positions were the same. I can see
how a person who is called a "pilot" for example rright well be
the pilot of a single er.gine plane, multi-engine plane, jet
plane, heiicopter, rii.er boat or hovercraft. The job title can be
misleading and to r~b:is e;:rent, ,I agree with my ~colleagues and
think it is appropriate to follow the direction of Vice-Chairman
'E.K. Sloan as laid out in Furniss 602!86 at pages.10 & 11.
Having said that however, I must add that I embrace Vice-
Chairman Sloan's reas0nir.g throughout the entirety of the
Furniss decision .and.do not limit myself to the particular
paragraph that suits my purpose, as my colleagues have done.
Llilliam Furniss worked during the summer months .as a Park
Warden.. In 19?,3 he was Park Warden at Subbald Point Provincial
Park. In 1984 he was Park !:arden at Kakabeka .Falls Provincial
Park and in 1985 he was Park Warden at Algonquin Provincial Park. . .
ii'hen hk claimed that he had completed his probationary period,
which pursuant to the agreement, required a certain number of
consecutive wee k.s in .“an annually recurring full-time
I>osltion...", i !1 c I? 11, p 1 0 !' I! r demurrecl il i, II i! r i li e II I h 3 t. E a c h Par I<
iiarden assignnew wa5 a di ii c.rc.nI~ poi;iI ion.
3.
Th e MO =r d hearing the Furniss CD:;C: r~onsidcred !: h e. I
consequences of their delibeiations. "Our d-ccision on this issue
will have considerable impact upon the level of job security to
be enjoyed by seasonal employees;.." Furniss (supra).p.6. It is
my view that our Panel is in a simiIa!- posizion because even
though the facts are different, the issues are the same and the'
ke!; issxe is the value of seniorit:;.
The Furniss Board gave clear direction. "The Seniority
itself is not based upon the number of ihours xo'rLzd in a
particular posifion. Thus, when it coii.es to recall, the choice
between two candidates for a gi\ren position will be based upon
their overall senioritv within the Plinistrv. So in a situation
where two former employees working in precisely the sane lccation
are vying for the same position in that location, .it is'the
candidate with the most overall seniority i<ho is entitled to .the
job." (Emphasis added), Furniss (.Supra) p.8. 'I'he Furniss
grievance was allowed and at the request of the parties, no
finding was made as to remedy.
In opposition to Furniss is Saunders, 0275/35 an award
issued five days prior by Saltman, Freedman arzd gallace. As in
Fxiniss, the decision is unanimous .and I trust my colleague,
Israel Freedman, will forgive me for stiggesting that the awar,d is
nothj.ng short of being manifestly wrong.
,
4.
The panel in Saunders l.ike my colleagues jn this case want
to read the word “exact” into the phrase “the same position”. In
short, they want to read the a,rticl.e as if it said “the exact
same position”. ‘M ! view is t.hat the> ca’nnot properly do this
because there is no evidence to sup.port the conclusion that this
is what the parti.es intended. Our roie is to apply the agreemect
in its present form and flesh otit the parties’ true intentions
only when we are. faced viith ambiguity. I see no ambiguity here.
The parties could have inserted any modifying xords they wanted,
if that’s what was intended. The thrust of this article is to
provide a measure of job securit!~ and an interpretation in line
w i t h the Saunders’ panel and my colleagues in this case simply
defeats that purpose. X0 one is ever going to find their mirror-
image counter-part Ian thins or any other case. The reasoning
applied by the Saunders’ panel and my colleap:.!es her’e xi11 allow
the employer to find even the slightest variati~on in duties (the
Saunders Board allowed 15% variance) and so prevent the
legitimate ilse of seniority. To take this ;ase to the extreme,
the employer could deny two secretaries held the same ‘position
because one typed letters for “2de” and the qthei typed for
“Bill”.
. .
In. the case at hand, bwth the grievor and 1ys Oltsher were
employed as Timber Technicians. They both worked for the Forest
Nanagement Branch of the Ministry, of Natural ?.esoyrc.es in Fort
Frances. A s t. he majority has stated at. pGfic ? 1 “It is beyond
dispute t,t1 at t!le r e a r f CCZ!-tZ31” similtiril.ies ,>I? LW een L h E i ii 0
5.
positions", and I. of course, 'agree. 'I‘lli majority goes on to
conclude, "that some overlap of tasks exists betxeen these two
positions", and I agree with that as well. I have grave concerns
about the balance of the comparison, howexjer. The fact that the
grievor and Ys Oltsher report to different supervisors is
insignificant. All members.of the bargaining tinit report td a
superior and these two are no different. The superior gives
instructions and directions to the subordinate either orally or
in writing and nothir,g turns,on this relationship as it is conmo"
to all ecployment situations. The fact OC the %'atter ins ,the)
both had a" immediate supervisor and those supervisors had
di~fferent job titles. In any event and according to the 1987
organizational chart, (exhibit 7), both reported to the same
level of management. This fact remained unchanged when the
organizational chart was changed in 1968 (exhibit 9).
It is also a fact that both Lltsher and the grievor were
required to bring similar academic education, skills and
knowledge to the job. They were both assigned to the class
alloca~tion of .Resourc& Technician III, apparently for nearly
identical reasons which are all set out on the position
specifications tendered in evidence as exhibits 4 and 5. . .
I shall now turn In! attentions to what the grievor and .?Is
Oltsher actu.ally did. The broad picture is revealed in exhibit
28 :!nd "! colleagues in t.he najori1~y havf d e \' 0 I~ e d several pages
to a deirai.Ied analysis of the sta~ls~ic~.
I
I
6.
Exhibits 28 ins a spreadsheet. I)Dh’ll the lelt-hand column are
listed al’1 the job functions that a Timber Technician III can be
asked to perform. Across the top, the sheet is bif:wrcated and Ms
Ol.tsher’s and the grievor’s names are shown. Underneath thei r
respective names are vertical, columns under each year of
employrent. Ear each employer the years are shown as 84/85;
SS,'BO; 86/87 and 87fP8. The number of hours an employee worked
in each category in each annual period is thereby shown. Certain
categnri es of assignments are di~vided into the fo?lov:ing sub-
gi-oilps: Operational; Surveys/Plannj~ng; F , ‘i . .A , Support;
ddninistration and .Other.
The argument established by the employer and .ac.cepted by the
ma jori,ty is readily
apparent from the figures shiwn i. n exhibit
28. I” fact, there can be no doubts t~hat Vs Oltsher !las for the
past three seasons, performed in the area of F.M. 4. Support,,
while the grievor has not. However, this does not end the
argument in my opinion.
F~irstly, the exhibit shows all of the duties that ,either
employee could~ be called upon to perform. lihether rhey actually
perform them or not is irrelevant because no employee in the . .
series has control over the nat,ure of his assignments. The
significant factor t.o consider is that in order to obtain and
mnint~xin the classi~fication of Kesource Technician 11’1, a”)
cmj~io~ea, jn TV h e g r o II p .i s p r es 1s m E d I c, I> c I o ro // c I e II t I I) u n d e r TV a k (:
7.
case, rhe employer (presumab1.y) would tle~aoLu I~Ile empl~oyee Lo Lht.
appropriate level. Similarly, we are free Lo presume that no
employee would be promoted to the l.evel of Resource ‘l‘echnician
:III unless he could perf.ormiall. of the duties within the range of
requi~remen ts. In short, you can’t be Ian the position unless you
can perforir, all of the duties that may be ret;ui.red of you. From
this point 0: Tiers, I would say both the grievor and ?Is 3ltsher.
Kiere In the& same position; In fact, of the 77 different duties
that these er;ployees could be called en to ?e’rform, t~he grievor
has performed 20 while !ls Oltsher has or11 performed iS <(during
the 84-98 period). In other words, the!; bott, have perfprmed the
majority of job functions they could be asked to perform, while
nei.ther .h,as perfornied all of them. To my way of thinking, at
least, this rates them fairly evenly.
Secondly, exhibit 28 cleverly clumps an assortment of duties
under th.e headi.ng “F .M.A , Support”. These are the so-called
“audit functions” of Ms Oltsher and by clumping them together,
the employer (who tendered exhibit 28 in evidence, albeit without
objecti~on from the union-), make,s it appear as if the grievor has
done none of the duties referred’ to and .therefore, does not
perform ~the “same” job. I think the employer's evidence is . .
misleadiing and a careful, analysis of these duties reveals a more
accurar.f pi’cture. For thins purpose, reference is made to pages .7
an,d 9 of, the majorit.? award., On page 7, the grievor’s duties are
I ; i :~ i! cl \!!,i i e tl7~ “a:l+ir iLrlcLir,n” (1 ,’ 1.; < 0 I t :: ! I c r IS (I c’ r ill i I e d 0 il
;,:igL’ ‘I. I refer- rrorll ,‘k!gc’ ‘9 t 0 ,‘:lg’ 7.
8.
An audit of silvicutura.1 work, etc., his nothing more than an
accounting of trees that are being grown to produce wood. I note
that the grievof performs similar duties by inspecting forested
.I.and prior t.o licensing, whil~e cutting is in progress and after,
and recommending and supervising foliow .up silviculiural
l~reatment. There is no magic in the ability to count tress.
Analvsis of m2napement plans, annual work schedule and
a il n u a ‘L reports simply means reading documents srodilced by the
contrect~ing company and reporting t.o t~he tinit Forester, anyt.hing
unusual. The grievor does this all the time. The majority point
out that he described himself “as the eyes and ears of the
forester” and no one contradicted him. On this basis, .one could
fairly say xhat Ms Oltsher wasp simply the “eyes” of the forester.
Management planning also shows up as a category on exhibit
28, as part of “Surveys/Planning”. It is evident that the gri’evor
has substantial experience in this area, at least sufficient to
rival Ms Oltsher.
Maintaining records and assessing the work of the agreement
hol.der is not a function that requ,ires a great deal of _.
explanation. The grievor like all other civil servants, maintains
records of some sort. Even if they are only his attendanre
iecords. Eisssessing the work of t~he agreement holder js nothing
9.
that an assessment be made and there is no tliiCerence between
this type of assessment and the ki~nd made by Ns Oltsher..
inspection of cornDan\ operaLions is somet.hing the grievor
can easil) compare to the large inspection c 0 m p 0 T! e II t of his
assigned duties and the Provision of advice to companv staff ca:i
be likewise compared to the several recommendation functions the
g r 1 f \ 0 1’ I; a s
Under the circumstacces, i find a s a fact that the duties of
Eis Olt sher, \<hile admittedly bearing different labels, are in 20
~\‘ay different from the duties that .the grievor either does
perform or has perfcrmed within the past four years.
There’s no great mystery to this case. The evidence
‘indicates the employer for some reazon, wants to lay-off the
grievor and keep Ms Oltsher, despite the provisions of collective
agreement. It seems clear to me that if the gri.evor was afforded
the “brief phase-in period” allowed Zls Oltsher he could perform
just as adequately in the “audit function” as he has in the
“operat.ional function”. Ghy the majority ‘at page 11 of their . .
the grievor nd longer Lo famjljar-ize kimse~l1: wit.h t,he job than il.
did Ms Oltsher. After all, the grievor and Ms Oltsher have
r e I. a to ; 1’ e ~1 y similar educational qualificatiors snd an equal
familiarit) iiith the duties of a Resource ?echnic.ian III. There
is no good and suEficient explanation of why it would take the
grievor so much longer to learn the job.
Rising above the i;;imediate concerns of the grievor though, I
b: i s 5 to disassocia,te myself from the 38 jority because of the
effect their auard’will ha\-e on all those who must .live bt: it. 1
envision the effect of the majority ruling as disastrous upon
those employees who felt they had, some measure of employment
securi t)’ through the disputed article. In my v i e w , the majority
rend er the article usele’ss because their award stands for the
Froposition that any dissimilarities at. ally between any t.wo
employees will i~ndicate that are not i.n the “same position”.
Iti my view, this makes the Seniority article totally
illusionary. Using the majority’s definition, no employee will
ever accumulate seniority that’s worth anyt.hing. That is to sa’y,
any emplqyee who wants to use their seniority to either advance
in a competition or bump to prevent lap-off will be ~met with t.he
zrgunent that their seniority .is, not available- to them because
t~ho en>loqee t~hey are seeking to displace does not hold the “same
position”.
a,
I .
11.
1 don't agree that empl~oyees have LO perI:ornl the same “core
functions” either and I submit there is no authority for the
majority to take such a positi.on. 1.f the parties wanted the
article to read I’. . . seasonal employees i.n the same position and
xi~th ,the same core functi~ons.. .‘I, the) cou1.d have written it that
way. This is a very sophi~sticated employer bargaining riith a very
sophist’icated unison. They have a Qreat deal of experience
ne’gotiating cpllective agr~eenent.s. The law on this topic is that
they said what they nean; ani I, at: ,lract, a~ccept tkat the “sa.me”
job is broader than “the exact, same job”. I also ~acc.e;lt that it
doesn’t necessarily mean jobs wi,th the same “core function”.
The grievor was the ser,ior employee. He has similar
qualifications to his junior, Ms Oltsher. The):~ were in .the same
Ninistry, same Branch, same area and had the same job ti.rIe and
same classifications. They performed the same duties throughout.
most of their tenure. If the seniority provisions are going to be
put to a test, then this is the case in which they will’ either
work or fail because there is. never going to be a closer match
than >ls Oltsher and the grievor. The majority would have them
fai~l and I will not be a part of it. The ramifications are far
too serious and widespread.
12.
I f j n d as f a c t. t ha t the g r :i e v o L- w ii s in t he same ]losil.ion a:;
Ms Oltsher. I find that he has been laid-ol’l in a manner that js
contrary to the collective agreement and .ir I~ had the authority,
I Y G u 1 d order him reinsta:ed immedia:(:l,y Gt.Ilout~ loss of
seniority, pay or benefits.
I A11 of which is respectfxliy s:!bnit.ted,