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HomeMy WebLinkAbout1988-0760.Kentell.91-04-18 ONTARIO EMPLOYES DE LA COURONNE '; CROWN EMPL 0 YEES DE L 'ONTA RIO C GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS :;80 DUNDAS STREET WEST, SUITE 2TO0, TORONTO, ONTARIO. M5G 1Z8 TELEPHONE/T~LfJPHONE: 1BO, RUE DUNDAS OUEST, BUREAU 2100, TORONTO IONTARIO). MSG IZ8 FAC$1MILE/TEL'~-COP[E .' (416) 326-t396 760/88 IN THE HATTER OF iN ]tRBITI~ATXON Under' Before ~E GRI~CE SETT~~ BO~ BETWEEN OPS EU (Kentel 1 ) Gri evor - a~d - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE: J. McCamus Vice-Chairperson A. Stapleton Member FOR THE C. Dassios GRIEVOR Counsel Gowling, Strathy & Henderson Barrister & Solicitors FOR THE D. Costen EMPLOYER Counsel office of Legal Services - Labour Relations Ministry oz Treasury ana HEARING June 29, 1989 July 20, 1989 Decision The Grievor is a Private Land Forestry Technician employed in the Forest Management office for the Cornwall district, one of four districts in the .Employer's Eastern Region. The Grievor is classified as a Resource Technician Senior 1 (RTS 1). The Grievor seeks reclassification to the management'classification of TM 14 or, alternatively, as a Resource Technician Senior 2 (RTS 2). Obviously, the Grievor's preference is to reclassified to the former classification, rather than the latter. In the further alternative, should the Grievor not enjoy success with respect to either TM 14 or RTS 2, the Grievor seeks an order simply directing that he be properly classified. With respect to the claim for a reclassification as TM 14, the Union makes a "usage" argument. The Union maintains that the Grievor's counterpart in the Carleton Place district, also within the Eastern Region, performs essentially the same functions as the grievor and is classified as a TM 14. The individual in question, Milt Stewart, testified in these proceedings. Stewart's job description was filed as Exhibit 5. Evidence concerning Mr. Stewart's responsibilities was also provided by Mr. Brian Barkley, the Regional Forester for the Eastern Region. _ With respect to the alternative claim for a reclassification to RTS 2, the parties appear to be in agreement with the proposition that the important distinction between the two class 3 standards for present purposes relates to the presence or absence of a duty to engage in "long range operational planning". The Resource Technician, Senior Series Class Standard was filed in these proceedings as Exhibit 3. The opening paragraph for the RTS 1 Standard reads as follows: This class covers positions of employees responsible on a district-wide basis for technical control of a sub- service; OR who act as a 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. The opening paragraph of the RTS 2 Standard, on the other hand, provides as follows (emphasis added): This class covers positions of employees responsible on a district-wide basis for technical control and lo_gruq range operational Dlannin~ of a sub-service, OR who act as the senior assistant to district technical or Professional specialists in determining methods and techniques, implementing and interpreting policy, controlling standards, preparing long range operational plans and developing new policies for all sub-services in one or more services on a district-wide basis. Although there are other differences between the wording of the RTS 1 and RTS 2 standards, they'do not appear to be material to the present dispute. The position advanced by the Union, which was not seriously challenged by the Employer, was that if it could be established that the Grievor Was engaged in "long range operational planning", the Grievor would be entitled to reclassification at the RTS 2 level. The Preamble to the Resource Technician Senior Series Class Standards defines "Long-range Operational Planning" in the following terms: 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; analyzing these alternatives; recommending the course to follow; etc. The Preamble also defines the term "Sub-Service" as follows: Functional field equivalent of a Ministry Branch, e.g. Forest Management, Mineral Resources Management, Wildlife Management, Parks Management, Fire Control, Lands Administration. Needless to say, it is the Union's position that the Grievor is extensively involved in long range operational planning and it is the Employer's position that he is not. Before turning to consider the evidence concerning the responsibilities of the Grievor and those of Mr. Stewart, we may note that there is a connection between the Grievor's alternative claims to reclassification either as a TM 14 or as an RTS 2. It is argued by the Union that there are certain activities engaged in by Mr. Stewart, which are considered by the Employer to be of a long range operational planning nature, which are identical in nature to responsibilities carried out by the Grievor. We shall return to this point. The job description f~r the Grievor's position as Private Land Forestry Technician, which appears to be accepted by both parties as being an accurate description of his .position, describes the purpose of this p~ition and the duties and related tasks in the following manner: Purpose of Position _ Annually, to plan, organize, promote and control the Private Land Forestry Program throughout the District by providing a forest management service to landowners. This position also plans, directs and audits a tree planting program of approximately 2 million trees. Duties and related tasks Preamble: The program includes the preparation of over 85 WoI.A. agreements, 500 other plans, 3,000 public contacts and the planting of 2 million trees. 1. - Prepares annually the Private Land Forestry plan in consultation with 'his supervisor. This plan includes budget requirements, work locations and schedules, staffing, communications programs and 20% sets standards of performance and quality. 2. - Co-ordinates and audits the District Private Land (a) Forestry Program by assigning and co-ordinating staff, preparing tenders and recommending awarding of contracts, auditing projects, preparing reports and tax audits, reviewing and recommending silvicultural prescriptions, exercises budget 40% control of his program' and is responsible for his expenditures. (b)- Plans audits and assists in the execution of silvicultural and harvesting programs on private land in the District. (c)- Provides technical expertise on the Private Land Forestry program by assisting the Management Forester in developing long range private land management plans, directing the preparation of W.I.A. plans, analysing site, growth and yield data, prouiding technical and administrative guidance, expertise and training. (d)- Supervises staff by reviewing and assessing work performance, undertaking performance appraisal interviews, e~tablishing work schedules, hiring unclassified staff and taking or recommending disciplinary actiOn as required, recommending formal training. 3. - Plans, coordinates and audits the District tree planting projects by planning the program, preparing tenders, recommending awarding of contracts, 25% assigning and supervising staff, negotiating with and auditing contractors, authorizing payments, controlling expenditures and preparing reports. 4. - Promotes PLF by directing an intensive (a) communications program through the new~ media, by appearing at community events and various related activities. (b)- Promotes integrated resource management on private lands within the District and evaluates the potential of sites for wood production, wildlife habitat, agriculture, erosion control, aggregates and .other land uses in consultation with other services and government agencies. (c)- Acts for supervisor in his absence and performs 15% other duties as assigned. (d)- Carries out the duties and responsibility as described in sections 13 to 19 and section 23 of the Occupational Health and Safety Act. (The lettering of the sub-paragraphs does not appear on the original form but was added by the Grievor in order to facilitate a comparison with the job description of Mr. Stewart, a matter to which we will turn in due course) The principal responsibility performed by the Grievor which is relied upon by the union has the basis for reclassification either to TM 14 or to RTS 2 ~is his responsibility for the negotiation of Woodlands Improvements Agreements ("WIA contracts")~ under the Woodlands Improvements Act. These agreements are entered intowith private land owners for the purpose of facilitating reforestation or the regeneration of existing forests. With respect 'to such agreements~ the Employer supplies certain services concerning planting of stock and maintenance of the forest. The land owner obtains the advantage of being able to enjoy the profits which result from the ultimate sale of the trees grown on his or her land. These activities are undertaken by the Employer in order to secure certain public benefits such as the generation of wood cover, the prevention of soil erosion, flood control, the creation of natural habita~, the creation of recreational areas and the' creation of employment opportunities of various kinds. The tree planting program within the district is conducted on private lands through the WIA contract program. The Grievor estimated that something in the order of 90 percent of all of the tree planting in the district was conducted on private lands. On an annual basis, the Grievor supervises staff involved..in this program. He contacts land 'owners that may have expressed an interest in a WIA agreement. The Grievor's staff would consult with the land owner and draw up a draft plan for the management of the property under such an agreement for fifteen years. The draft agreement is prepared under the Grievor's supervision and ultimately, with his approval. The Grievor would, in reaching the conclusion to approve a draft proPOsal, consult with various relevant parties. Thus, he would consult with the Ministry of Agriculture and Food with respect to the question of whether that Ministry would favour some other use for the land, and so on. It is important to note that the Grievor is obliged to consult one of the district's Management Foresters, R.W. Stokes. The Management~Forester would review the proposed agreement with the same sorts of concerns in mind as the Grievor. Having consulted appropriately, the Grievor would .prepare a final version of the contract which would be typed up and then signed by the land owner and forwarded to the District Manager for signature on behalf of the Employer. It is important to note that the Management Forester who provides advice with respect to WIA agreements does not act in a supervisory capacity ~ith respect to the Grievor's work. The Grievor does not report to the Management Forester. Although this has not happened in the Grievor's experience, the Management Forester could, however, suggest amendments to a WIA agreement. If the Grievor did not agree with any such suggestion, the matter would have to be resolved further up the administrative hierarchy. The Grievor directly reports to the District Operations Coordinator, W.A. Marvin, who is classified.at the TM 14 level. Mr. Marvin has, in fact, no role in approving WIA agreements prepared by the Grievor. In the event of a controversy between the Management Forester and the Grievor, the matter would be resolved by the person to Whom Mr. Marvin reports, the Forest Management Supervisor, Mr. Barry Warwick. In' the normal course - indeed, in every case as far as the Grievor's experience is concerned - the WIA agreement negotiated with and signed by the land owner in question is simply forwarded to the District Manager, to whom Mr. Warwick reports, for a signature. Again, in the Grievor's experience, that signature has always been forthcoming. There can be no doubt that the Employer's obligations Under WIA contracts are both burdensome and long-term in nature. The agreements, themselves last for fifteen years. The EmplOyer acquires ongoing obligations with respect to maintenance, pest control and so on. Regular inspections are undertaken. Various measures, including replanting, may be required to deal with problems in particular forests. The forest management program on private lands is a substantial budget item for the Employer. The tree planting program run out of the COrnwall office is implemented and coordinated by the Grievor both in the private lands sector and in the public lands sector and the total tree planting budget alone amounts to approximately $ 350,000.00 per annum. Both the planting and the maintenance obligations assumed under ~he WIA agreements 9 carry on into the future. The planting process itself may take up ,to four years. Various maintenance responsibilities can extend throughout the entire fifteen year period of the agreement. Further, there appears to be no question but that the Grievor is essentially responsible for planning and directing forest management on private lands in the Cornwall'district. As the Grievor himself cOncedes, the budgetary commitment to this program is determined by others, more particularly, by Mr. Marvin and Mr. Warwick. Nonetheless, within that budgetary constraint, decisions with respect to priority have been made essentially by the Grievor. His decisions with respect to the sites to be developed,, the kind of development to tak~ place and the amount ofmoney to be invested in a particular site are subject to review and ultimate approval by others. Nonetheiess, the evidence is that his determinations with respect to these matters have been invariably approved. Moreover, while it is no doubt the case that the Grievor's decisions with respect to such various matters as are revealed on the face of the proposed WIA agreement are subject to the scrutiny of others, there is no evidence to suggest that the Grievor's judgement~with respect t~ such questions as site selection or other matters that would be contingent upon knowledge of the subject site or sites over-which the particular site is given priority are subject to routine scrutiny by 'his supervisors. The Union argues that the Grievor's effective responsibility for negotiating WIA agreements is precisely parallel to Mr. Stewart's responsibilities in Carleton Place and thus strengthens his claim for reclassification to TM 14, the classification currently enjoyed by Mr. Stewart. As we shall see, the Employer responds by attempting to identify significant differences between · Mr. Stewart's responsibilities and those of the Grievor. Alternatively, the Union argues that the Grievor's responsibility for WIA agreements constitutes an involvement in long range operational planning and thus entitles him to reclassification as an RTS 2. The Union contends that the forestry management exercise on private lands for which he is effectively responsible is a large operation, that it requires considerable long range planning and that this planning is undertaken by the Grievor, albeit in a fashion which requires him to consult with Others and which requires that ultimate approval be given by the District Manager. The Employer responds, in part, by suggesting that the Grievor's responsibilities in this regard do not constitute "long range operational planning" in the requisite sense and further, the Employer emphasizes that there is long range operational planning of various kinds undertaken by the Management Foresters with respect to which the Grievor has little or no involvement. We are satisfied that the evidence led does in fact firmly support the latter proposition. Thus, twenty year plans are developed for forest management in the crown lands by.a Mr. Stokes and for so- call~d "agreement lands", with respect to which the Employer normally makes commitments which will endure for twenty-five years, by Wilson. Further, Stokes is responsible for deueloping fiwe year 11 forecasts which attempt to assess the need for planning stock of various species. This information is used, in turn, to facilitate long term planning within the Employer's nursery system. The Grievor's involvement in the five year forecast process is simply one of providing information to Stokes that is necessary in order to facilitate his preparation of the forecast. Stokes also has planning responsibilities related to the Domtar project,' a matter which need not be further explored here. While the Union acknowledges that.there are indeed other planning activities of this kind undertaken by the Management Foresters, the Union emphasizes that Management Foresters do not develop long range plans for forest management on private lands. The only long range planning undertaken with respect to activity on those lands is undertaken through the device of the WIA agreement, a planning instrument which reSts essentially in the hands of the Grievor. We agree with the.Union that the critical question is whether the Grievor's involvement in planning forest management on private lands constitutes "long range operational planning" for purposes of the RT$ 2 standard. In attempting to answer this question, it will be helpful to consider the nature of the responsibilities undertaken by Milt Stewart, the Grievor's alleged counterpart in the Carleton Pl'ace district. We must examine Mr. Stewart's situation for the additional reason that it is necessary to do so in order to explore the Union' s submission that the Gr ievor is entitled to 12 reclassification to the TM 14 level. Mr. Stewart was classified as TM 14 on February 1st, 1987. Prior to that time, he had been classified as an RTS 1 and the evidence indicates that it was the reclassification of Mr. Stewart at that time that led 'the Grievor to consider his own situation and to seek a reclassification of his own position. It is perhaps not surprising that Mr. Stewart's reclassification provoked this reaction. Prior to February 1st, 1987, there were two RTS l's working in the Carleton Place district, one of whom was Mr. Stewart. The other RTS 1 unfortunately became ill and ultimately died in the summer of 1986. Subsequently, the RTS I work was restructured and Mr. Stewart became responsible, for all forest management on private lands and thus acquired a responsibility which, in this respect at least, is similar to that. shouldered by the Grievor. This fact, together with the fact that, according to the Grievor's evidence, the overall tree planting programs are planned and implemented in the other districts by TM 14's, appears to have provided a good part of the impetus for the Grievor's thinking that he ought, in fairness, be classified at the TM 14 level as well. When a closer examination of Mr. Stewart's overall responsibilities is undertaken, however, it is apparent that a number of differences between the Grievor's assignment and that of Mr. Stewart emerge. Mr. Stewart's job description was filed in this proceeding as Exhibit 5. The portions of the description setting out the "purpose" of his position and his "major responsibilities" are set out below. The numbers in brackets on the left hand margin are 13 corresponding paragraphs in the equivalent portions of Exhibit 4, the job description of the Grievor, which the Grievor believes are parallel to the description of responsibilities of Mr. Stewart. Purpose of Position To assist the Forest management Supervisor in ordinating'the~Forest Management Program on private land for the entire Carleton Place District, through planning and control of field staff, budgeting and auditing of work program. To budget,'audit and liason with agencies undertaking Private Land Forestry Program under M.N.R.'s direction Statement of Major Responsibilities 1. Plans, co-ordinates, executes, audits and keeps (1+2c) records on the District's Private Land Forestry Program by preparing long range operating plans and annual plans to meet the District's targets and objectives on private land. 2. Plans, audits and assists in the execution of the (2b) silviculture and harvesting program on private land in the District~ 3. Budgets, audits and provides silvicultural advice (2a,3) to other agencies undertaking the Private Land Forestry management Service, subsidized by O.M.N.R. ~or lanaowners in the jurisdiction ie. Rideau Valley Conservation Authority 4. Supervises and motivates staff by assessing (2a+2d) priorities, assigning work, training staff, recommending merit increases and disciplining as required. 5. Prepares annual work plans and budgets for the (1) private land program in .'the District for the supervisor's approval. 6. Prepares a variety of private land forestry reports, (2a) tax audits, silvicultural procedures etc, and makes recommendations when required.' 7. Keeps the Forest Management Supervisor and foresters (1, 2c) informed on changes in the Private Land Forestry Program (~g. policies, procedures and tax rebate 8. Liason with other Ministries and interest groups, (4b) eg. Ministry of Agriculture and Food, Ontario Maple Syrup Producers Association 9. Promotes the Private Land Forestry Program through (4a)_ participation in public meetings, Ontario Maple Syrup Producers Assoc[i]ation, 4H Clubs, Agricultural Field Days, Windbreak meetings, Field days'and associated activities. 10. Audits privatization of forest management practices (2b, 3 on private land eg. planting, stand improvement, preamble) harvesting, marking, assessments, site preparation and writing of Woodlands Improvement Act Agreements. 11. Provides training courses for staff in Sugar Bush (2c, 4b) Management for Maple Syrup Producers,. marking and site evaluation for tree planting. 12. Enhances Private Land ForeStry Program by developing (2b) new markets and better utilization of forest products through the district's private land timber sale program. 13. Performs other related duties - acting for Forest (4c) Management Supervisor during his absence, serving on committees, task forces, etc. as required. 14. Ensure that workers take precautions to protect'the (4d) health and safety of themselves and others by complying with such acts, codes, policies, procedures or accepted practices as may be appropriate. Ensure that workers ~re advised of known hazards and the required precautions. When .one compares the statement of major responsibilities of the Stewart job description with the paragraphs in the Kentell description indicated in the bracketed annotations, it is obvious that there are indeed striking parallels between responsibilities of Mr. Kentell and Mr. Stewart. Put simply, the Grievor's point is that he functions ·as the co-ordinator of private land forestry in the Cornwall District. As Mr. Stewart's job title indicates, that is essentially the function he performs at Carleton Place and the Grievor sees no reason why he should not have the benefit of the same classification as that of Mr. Stewart's position. · · From the Em~/oyer's perspective, there are a number of important differences between Mr. Stewart's current assignment and that of the Grievor. The correct parallel, it is argued, would be between the Grievor's job and Mr. Stewart's responsibilities prior to February 1st, 1987. Prior to that time Mr. Stewart was responsible for what was essentially WIA contract work in the 15 ' Lanark area which constituted half of the Carleton Place District. Although Stewart's assignment at that point was not district-wide, the work was in other respects allegedlyparallel to the Grieuor's current assignment. When Mr. Stewart"s responsibilities became district-wide on February 1st, 1987, it is alleged that a number of other important changes occurred. Thus the Employer relies on the following items as being the most important differences between Mr. Stewart's current assignment and that of the Grievor. First, Mr. stewart reports directly to the Forest Management Supervisor, that is to say to Mr. Warwick's counterpart in Carleton Place, rather than, as is the case with the Grievor', to a District Operations Co-ordinator. More importantlY, it' is part of Mr. Stewart's responsibilities that he fills in for the Forest Management Supervisor in his absence. It was Mr. Stewart's 'evidence that he effectively performs the Supervisor's functions during that period of time, which represents about ten percent of' his workload, and does not-merely "handle phone-calls" in .the Supervisor's absence. The Grievor, on the other hand, reports to a person who, in turn, reports to the Forest Management Supervisor. Secondly, it is argued by the Employer that the.private lands forest management program at Carleton Place'is more complex and more demanding than the Cornwall operation. In particular, a significant portion of the private lands program is.undertaken by the Rideau Valley Conservation Authority. Mr. Stewart is responsible for relations with the Authority. Within the areas 16 with respect to which Forest Management has been delegated to the Authority, the Authority functions more or less in the manner of the Grievor. It negotiates and implements WIA agreements. Thus, Mr. Stewart is involved in supervising the work of a certified forester who is employed by the Authority. Stewart is responsible for a budget of approximately $100,000.00 which is allocated to the Authority. Stewart must develop relations with the agency staff, supervise and a~dit their work. As well, Stewart is very much involved in any decisions made with respect to the extension of the Authority's activities into new areas. Mr. Barkley, the Regional Forester, indicated in his evidence that he viewed the handling of relations with an external agency of this kind to'be a significantly more difficult matter than simply doing WIA work on one's own. It definitely ~equires, he said, a senior person. Thirdly, the Employer places some emphasis On the fact that there is no Management Forester involved in the private lands forest management program in Carleton Place. The Grievor's work, on the other hand, is, in effect, is vetted by a Management Fores%er. Although it may well be true, the Employer concedes, that the Management Forester in question has never recommended a change in a WIA agreement negotiated by the Grievor, the Employer suggests that this is simply evidence of~the fact that the Grievor is ~ery good at what he does. Nonetheless, no similar review is undertaken of Mr. Stewart's work. He simply approves his own WIA agreements and sends them directly to the District Supervisor for 17 signature. The Employer argues that there are a number of other differences between Mr. Stewart's responsibilities and those of the Grievor that may be of less ~importance but that nonetheless strengthen the case for holding 'that there are significant differences between the two positions. Thus, for example, paragraph 10 of the Stewart description assigns him responsibility for auditing certain forest management ~practices. In Cornwall, that responsibility is divided between the Grievor and Mr. Boileau. Further, Mr. Barkley testified that the two districts have different characteristics that create different kinds of workloads. For example, Carleton Place is a much more urban district. This means that there is greater developmental pressure on land as a result of urban expansion. This complicates the exercise of private lands forest management and requires some contact between · the responsible party and the municipalities in question. Further, the forests on p~ivate lands in the Carleton Place District are on average much more mature than those in Cornwall. Thus, Mr. Stewart is much more involved in contact with land owners concerning harvesting and marketing of wood. The Grievor, on the other hand, is much more involved in planting. Of the two activities, harvesting and marketing pose greater problems for the Employer. Similarly, there are many more forests in Carleton Place being managed for maple syrup production. Again, this is a more complicated matter than the more normal planting and maintenance - 18 of forests for other purposes. In addition, Mr. Stewart supervises a slightly larger staff, an so on. We have come to the conclusion that the Employer's evidence and submissions on this point are persuasive. We find that there are, indeed, significant differences between the responsibilities of Mr. Stewart and those of the Grievor. On FebruarY 1st, 1987, Mr. Stewart acquired a broader range of responsibilities in such areas as budgeting, auditing and dealing with an external agency. As well, he was located further up the supervisory hierarchy and given responsibility for sitting in for the Forest Management Supervisor. These changes and the other differences between the responsibilities of Mr. Stewart and the Grievor noted above make it impossible, in our view, to sustain the argument 'that the Grievor's responsibilities are so similar to those of Mr. Stewart that the Grievor is entitled to the same classification. We return, then, to consider the alternative submission made on behalf of the Grievor, that is that the Grievor's involvement in "long-term operational planning" is such that he is entitled to reclassification at the RTS 2 level. On this point, we find the evidence concerning Mr. Stewart's involvement in planning confirmatory of our own view which is t~ the general effect that the ~nion has made out a persuasive case on this point. Although, as indicated above, private land forestry management in Carleton Place is organized somewhat differently from the organization in the Cornwall district, there is an important parallel with respect to planning in this area. In Carleton Place, rather than relying -as is the case in Cornwall - exclusively on WIA agreements as the vehicle'for forestry management on private lands, three devices are employed in Carleton Place. In addition to WIA agreements and the above mentioned arrangements concerning the Rideau Valley Conservation Authority, Mr. Stewart is also involved with Advisory Services Agreements entered into between the Employer and private , land owners for fifteen year periods which appear to be. Similar to WIA agreements with the important difference that the land owner assumes the responsibility to carry out the work outlined in the Agreement at his or her own expense. Thus, in Carleton Place, the planning undertaken by Mr. Stewart with respect to Forestry 'Management on private lands is constituted by three sources, his own. work on WIA agreements, his work with the Rideau. Valley Conservation Authority and his work on Advisory Services Agreements. Although the devices 'are more varied, the planning exercise itself 'in Carleton Place is thus very similar to that undertaken by the Grievor in Cornwall~. Forward planning for private lands forestry management is constituted by a process of negotiating a series of long term arrangements with the individual land owners and, in the case of Carleton Place, additionally through supervision of an external agency negotiating 'similar arraDgements. It is of. some interest, then, that in paragraph one of Exhibit 5, Mr. Stewart's job description, these planning exercises are referred to by the phrase, "preparing long-range operating plans". The evidence on this point is clear. The "operating plans" in question are those planning exercises undertaken by Mr. Stewart which are directly parallel to the long- range planning undertaken by the Grievor in Cornwall. In Carleton Place, as in Cornwall, this is the only type of long-range planning that takes place with respect to forestry management on private lands. The fact that this activity is referred to in this fashion in Mr. Stewart's job description confirms our own view that the phrase "long-range operational planning" should be interpreted as referring to this type of planning exercise, among others. The Employer objects, however, that the reference to the "long-range operational planning" in the RTS 2 standard refers to the planning "of a sub-service". Counsel for the Employer argued that private lands forestry management is not a "sub-service" in the requisite sense. We do not find this persuasive.' Presumably, the Employer would 'be obliged to concede that the planning of forestry management on all lands within the Cornwall district would constitute planning for a "sub-service" or, in the language of the final phrases of the opening paragraph of the RTS 2 standard, the development of plans "for all sub-services in one or more services on a district-wide basis". The evidence before us, however, indicates that planning in this area is not undertaken on such a basis. Rather, one person is responsible for long-range planning with_respect to crown lands, another is responsible for planning with respect to agreement lands and a third, the Grievor; is responsible for long-range operational planning with respect to 21 forestry management on private lands on a district wide basis. No evidence was led in this proceeding which suggested that this language should be given anything other than its normal and plain meaning. In the Cornwall operation, private lands forestry management appears to be conducted as a "sub-service" of a larger service of forest management. It is therefore our view that in the context of the Cornwall operation, the planning of all forestry management on private lands on a district wide basis meets the requirement of "long-term operational planning" set out in the RTS 2 class standard. Accordingly, the GrieVance must, in our view, enjoy success on this ground. It remains, then, to consider the submissions of the parties with respect to the degree of retroactivity w~ich is appropriate with respect to the present award. It has been argued on behalf of the EmplOyer that there is no reason in the present case to depart from the normal rule of granting retroactivity ~o a period commencing twenty days before the filing of the Grievance. The Union, on the other hand, takes the position that once informal attempts were made by the Grievor to resolve the question of his classification, the retroactivity period should be considered to commence. Otherwise, the application of the twenty day rule in such a case would put a premium on the filing of grievances and woukddiscourage attempts at informal dispute resolution. Although counsel for both parties have relied upon Previous decisions of the Grievance Settlement Board which may be thought to yield conflicting signals with respect to this issue, we think these differences are easily resolved in the present case if one accepts, as we do, the evidence of the Grievor concerning the nature~of his discussions with representatives .of the Employer in November of 1987. When the Grievor became aware of Mr. Stewart's reclassification, he went to his .superiors in order to seek a similar reclassification for himself. It was the Grievor's evidence that although he realized that his superiors did not have the authority to reclassify him or to create expectations in this regard, he did understand them to be somewhat sympathetic to his situation. They participated in the exercise of drafting a new. job description for the Grievor,.Exhibit 6 and, on November 20th, 1987, forwarded this job description, with which they were understood to be in agreement, to the region coupled with a request for consideration for a reclassification. It was the Grievor's evidence that at that point he was advised either by Mr. Marvin, Mr. Warwick or Mr. Cleroux that it would not be appropriate to file a grievance until he received a decision ~rom the Region with respect to the requested reclassification. It is our view that the Grievor's evidence was credible and can be relied upon without difficulty an the absence of evidence to the contrary.. Of the three individuals mentioned by the Grievor as possible candidates for having given him the advice that it would be inappropriate' to file_ a grievance, only Mr. Warwick testified. Mr. Warwick's evidence was not necessarily inconsistent with that of the Grievor. It was Mr. Warwick's evidence that although he could not say that 23 ~ he would have expected a grievance in the event that the attempt at reclassification failed, the thought of a grievance is "always there" in a situation of this kind. Although it was his view that, at least when the Grievor first raised the matter, the possibility of a grievance was not discussed, we do not understand it to be Mr. Warwick's evidence that the possibility could not have been discussed by the Grievor with either Mr. Marvin or Mr. Cleroux. Accordingly, we are satisfied that the Grievor indicated, somewhat prior to November 20th, 1987, that he felt that. his own situation was unfair in the light of the reclassification of Mr. Stewart's position. Further, we are satisfied that on November 20th, 1987, the Grievor was advised by one of the three individuals mentioned by him that since a request~for reclassification was going forward, it would be inappropriate to file a grievance at that point in time. A decision from the Regional office was not received for several months. The decision ultimately communicated to the Grievor was that the request had been denied. After he had received the rejection of his .application, he filed a grievanCe within a few weeks. Against this background, even if we accept the Employer's argument that in order to justify retroactivity one must be able to find grounds for holding that the Employer is estopped from relying on the twenty day rule, we are satisfied that such an estoppel is Created in a situation such as the present. The Employee had indicated that he believed that he was being unfairly treated in a manner which would-clearly involve a breach of the Collective Agreement. His superiors indicated to him that he should attempt to resolve the matter through the processing of an application for reclassification and, further, that it would be ! inappropriate, in the interim, to grieve. An estoppel is created in such circumstances. To the extent necessary for us to do so, we are in any event persuaded by the reasoning in OPSEU (Sabo) v. Ministry of Community and Social Services 777/86 (Dissanayake) to the effect that it is not necessary to a holding that retroactivity can extend beyond the twenty day rule to find that the Employer has made a representation that it agreed with the Grievor'$ complaint. We also agree with the decision made in that case at pages 26-27 that "Not every informal discussion of a classification complaint is sufficient to entitle a Grievor to retroactivity. There must be evidence that the Employer was made aware expressly or tacitly, that the employee is contemplating the filing of a grievance if the outcome of informal procedures is not satisfactory". There could not be better evidence of an awareness of this kind on the Employer's part if advice is given to the effect that it would be inappropriate to file a grievance at this point in time. Accordingly, we hold that in the present case, the Grievor is entitled to retroactivity back to November 20th, 1987. We further agree with the Union's submission to the effect that interest on the_usual terms should be awarded to the Grievor. In summary, we find that the Grievor is entitled to 25 'reclassification at the RT$ 2 level. The new classification should be retroactive to November 20th, 1087. The Griever is entitled to interest on the usual terms. The Board ~emains seized of jurisdiction in the event that the parties should encounter difficulty in the interpretation or implementation of this Decision. :' Dated at Toronto, Ontario this i8th day of April , 1991. ~J ohn~/I.' cCamus - ~JVice-Cha '~erson : '/ A. Sta~letor~, Member