Loading...
HomeMy WebLinkAbout1988-0724.Boileau.89-11-27 ONTARIO ' EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO I GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE2100 TELEPHONE/T£L~'PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G IZ8. BUREAU 2100 (416)598-0588 724/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Boileau) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer Before: B.A. Kirkwood vice-Chairperson M. Lyons Member G. Milley Member For the Grievor: C. Dassios Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the Employer: M. Failes Counsel Winkler, Filion and Wakely Barristers and Solicitors Hearings: June 12, 1989 July 11, 1989 Page AWARD The grievor holds the position title of Senior Timber Technician and is classified as a Resource Technician Senior I and seeks an Order that he be properly reclassified or alternatively that he be classified as a Resource Technician Senior 2, from July t, 1987, and that he be compensated for any monies lost to that date plus interest. The preamble to Resource Technician, Senior Series states in part as follows: 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 fur both groups is a thorough knowledge of the principles of resource management and technical expertise... Positions will be allocated to a specific level in this class series only when all the requirements of that level have been fulfilled. The class standard of the Resource Technician 1, Senior Series states in part 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 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 participste in the development of management plans, prepare initial agreements with.private land owners, prepare work plans and annual budget estimates, organize and scheduled units work and exercise budget controls. Positions o~ supervisors who on a year-around basis have administrative responsibility for a formal unit of organization (functional or territorial) and who, in this context, prepare work plans and annual budget estimates, organize and schedule the unit's work and exercise budget controls, are also allocated to this level. Positions of employees in ~harge of type "B" parks or type "B" hatcheries or second-in- charge of type "B" tree nurseries, are included 'at this level... The class standard of the Resource Technician, Senior 2 states in part as follows: This class covers positions of employees responsible on a district-wide basis for technical control and long range operational planning 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. Positions of employees responsible on a 'district-wide basis for field control of Timber revenue sources are also included at this level .... Supervisors of type "A" parks and type "A" hatcheries are allocated to this level. Also included are positions of employees who are second-in-charge of type "A" tree nurseries... The union claims that the class standard for Resource Technician Senior I 'does not describe the full extent of the grievor's duties nor does it take proper account of the grievor's responsibilities .for field control of timber revenue sources on a district-wide basis nor the degree of accountability and knowledge he has of timber sales. The union submits that these duties which together with the Page 4 personnel duties, form 40 % of his total duties, and ~re not fully covered by the standard. The union submits that the Resource Technician Senior 1 class standard is now out of date and is no longer an appropriate classification for the position. The union argues that on the basis of O~U (C~eza et al.) and The Crown it R{~ht of Ontar.~o (M~nistry of T.abour (G.S.B. %0909/86, 0910/86, 0897/87 (P.M. Epstein)that the grievor is entitled to be reclassified when there is such a high proportion of the duties not covered by the class standard. The employer's counsel submitted that the preamble to the class standard for the Resource Technician Senior series, requires the employee to meet all requirements of the standard before he is entitled to acquire the position. Where there is an overlap of compensable features, concentration must be placed on those areas where there is no overlap. The employers' counsel submitted that the technical inuolvement of the ResOurce Technician Senior 1 and the Resource Technician Senior 2 is similar, bu~ the distinguishing feature and compensable feature between the two jobs, is-the level of responsibility attributed to each position. The employer's counsel submitted that the grievor was an excellent Resource Technician Senior 1, but his responsibilities were not such as to require his reclassification as a Resource Technician Senior 2. The employer's counsel submitted that grievor is not responsible on a district wide basis for timber sources, which can be either private lands or Crown lands, nor is he responsible for long range planning of the resources, nor is he the assistant to the district technician as the employer's counsel submits is a requirement under the first paragraph of the class standard of the Resource Technician Senior 2. The Unit Forester, who is a Resource Technician Senior 2 has the responsibility for the timber sources, although the grievor .has some involvement in long range 91arming and may 9rovide advice and input to the Unit forester. The employer's counsel submitted that reclassification is an extraordinary remedy which is applied only in cases where the standards do not fit the nature of the job. The issues therefore are: 1) what is the test which the grievor has to meet in order to be reclassified; 2) does the grievor meet the test with the result that he is either entitled to be reclassified or to be classified as a Resource Technician Senior 2; or 3) does the class standard and job specification fail to cover the duties which the grievor performs. The Preamble which forms part of the Class Standard for the Resource Technicians clearly sets out the standard that is to be applied in the classification of employees in these positions. It requires and emphasizes by underlining the word "all," that all the requirements in the level are to be' fulfilled before the employee is entitled to fill the position. This standard is higher than the "best fit" standard that is often applied in classification disputes. The board does not accept the employer's counsel suggestion that the first paragraph of each job standard must be met in addition to any requirements set out in the following paragraphs of the standards. We find that the first paragraph sets out criteria, which if met would entitle the employee to be classified in that position. HoWever, the following paragraphs of the standards uses words such as " also included are positions .... ",and "positions of employees..are also included", which leads .the Board to find that the following paragraphs set out in the standards create separate criteria, which if met in themselves, also entitle the grievor to classification at that level. If this were not the case, contradictions would arise between the more general descriptive first paragraph and the remaining paragraphs which are not in dispute. For example, the class standard of a Resource Technician, Senior 2, includes a supervisor of a type "A" park, the largest park, as are employees who are second-in charge of type tree nurseries. These functions have a more narrow geographic base than the district-wide basis required in the first paragraph, and therefore if the interpretation of the employer were to be applied, these paragraphs would contradict the first paragraph. Therefore, the Board finds that each paragraph descibing the applicable positions stand on their own and- therefore, in order to be classified as a Resource Technician Senior 2, the grievor does not have to fulfil the requirements set out in paragraph one of that standard and all the subsequent paragraphs, but must meet the criteria of any of the paragraphs describing the positions or responsibilities. During the hearing the union conceded that the grievor was not responsible for long term planning of the forests, nor was he the senior assistant to the district and clinical or professional specialists. Therefore, the issue is then to determine to whether the grievor's responsibilities fell within the second paragraph of the class standard of the Resource Technician Senior 2, "Positions of employees responsible on a district-wide basis for field control of Timber revenue sources are also included at this level..." The grievor testified that he is responsible for preparing lands in the Larose Forest, for planting trees, to helping them grow, to releasing them and harvesting them. The Position Specification & Class Allocation attributes 10% of the grievor's .duties to "negotiates the sale of forest products, identify suitable markets, assign scalers, audits performance and controls timber revenue on a District wide basis." The grievor suggested that 20% was the more appropriate amount to be allocated to the negotiation of sales products. The grievor testified in direct examination, that only he was responsible for the sales of the trees by weight-, scale or by standing trees, although he will delegate duties to those below him. He stated that he set the prices for the timber either for the reserve bid or directly With contractors, after considering Provincial guidelines and as they may be effected by the local ualue. However, .in the grievor's cross-examination, the procedure and responsibilities were clarified when the grievor acknowledged that he .acts in consultation with hisI supervisor, 'Art Marvin, the District Operations Co- ordinator, who is responsible for the operation of the forest and Barry Warwick, the District Forest Manager, to discuss the prices, but that it is Barry Warwick who final'izes the prices. The area has a long range plan to cover 20 years which is reviewed everYlfive years. Within the five year review there is a yearly operational plan which determines what has to be harvested each year. Barry Warwick testified that it is his responsibility to review the areas to be harvested which then determines the revenue. Barry Warwick visits the sites with Art Marvin and the grievor, and they discuss what should be harvested. Barry Warwick relies on the grie~or'~ assistance in providing him with the past sales figures and estimates of the expected sales. Barry Warwick testified, however, that he decides the type of operation that is to take place and finalizes the revenue. The grievor, in his ?a~e ~ testimony also recognized Barry Warwick's right to veto and approve the operations and the revenue. We find on the evidence, that the grievor is not responsible fo~ field control of timber revenue sources, but is a key person in providing that technical expertise to the Unit Forester. The grievor has the responsibility for providing technical information and local market information to his superiors as ~to what has to be harvested and the prices that are set. However, the responsibility for the decisions falls to his superiors. Although he bears the responsibility for the technical input, he does not bear the responsibility for the area and therefore, not withstanding his technical expertise, he is not responsible on a district-wide basis for field control of the timber revenue sources. Therefore, the Board finds that the grievor does not meet the criteria set out in paragraph two of the class standard of the Resource Technician, Senior 2 and therefore cannot, on this basis, be classified as a Resource Technician, Senior 2. The case of OPSEU (Anderson et al.) and The Crown Right of Ontario (Ministry of Natural Resources) (G.S.B.~30497/85) (R.J. Roberts) explores the premise upon which the class standards are based, and finds that by their nature, they are general in scop~ mhd finds that there will be significant variations in the concentrations of the duties which the employees who are properly classified do. However, when there has been a substantial difference in the' actual work performed and the description of the job a re- classification will be ordered. In OPSEU (Cab~za et ~1.) and The Crown Sn Right of Ontario (Ministry of La~o%Lr (G.S.Bo 90909/$6, 0910/86, 0897/87 (P.M. Epstein), that board found that the job classifications, which had been formulated approximately twenty-two years prior to the grievance, did not describe the real roles which the grievors performed and therefore reclassification was ordered. Applying the same concept, the board in'OPSRU (Jack Sears% and The Crown ~n the R~ht of the Prov~nce of O~tar4o (~nls~ry of Co,unity and Soc4a] Serv.~ces) G.S.B. # 446/86 (A. Barrett) found that the job classifications were not obsolete and therefore did not order reclassification. Therefore, the union has the onus to prove that the job is substantlal]y different from the job standard and class standard in order to obtain an order for reclassification. The union agreed that the job specifications substantially reflected the duties of the grievor, although the union's counsel submitted that the percentage of time allocated to each task was not necessarily accurate when referring to the time spent on sales, the involvement in personnel work such as doing performance appraisals and attending to the hiring of casual staff, and his involvement in the occupational'health and safety field. We do not find that the percentage of the time allodated for ~he duties relating to the sales was so inaccurate as to find that the amount of time spent on those activities created a substantial difference from the job descriptions. The grievor testified that he spent one day a week, to week and one half, on work relating to the sales of the timber, but he also said that many of the tasks will fluctuate by season, in which case a great deal of time may be spent at one point in time and not at another. The grievor also acknowledged that the tasks in issue were related to other duties which were set out in the job description, although he may have allocated a lower percentage to the other tasks. Pa~e 10 The grievor testified that he spent approximately one day per person per year in doing performance appraisals in addition he spends one day for each Resource Technician 3 every week in a week and a half by going out to the field and seeing their work and watching them and appraising them. He was also responsible for the unclassified staff. He also recommended disciplinary action if required, although it had not occurred in the last two and one half years. He was responsible for the training under Workplace Hazardous Industrial Site "W.H.I.S". The board finds that these duties were recognized in the job specification which attributed 10% of his time to these duties. These duties will also overlap those duties relating to the general supervision of the projects. The grievor testified that he was the only person responsible for pest control in the area. However, the work plan which was presented to the Board also indicated that his superior John Wilson had responsiblity for pest control. Although this task is not recognized in the job classification nor in the job specification, there is insufficient evidence to find that this duty forms a substantial portion of his work, which would make his job classification obsolete. In the cases which were presented to the Board, in which reclassification was ordered, there were a substantial difference in the duties performed by the employees and those referred to in their job descrptions, in the case before this board, the duties were .recognized in the desciptions, but they were not allocated as great a percentage of time as the grievor would have allocated to them. There was some difference in the percentages, but not to the degree that there was a substantial difference from the job descriptions. Therefore, this board cannot order the grievor's position to be reclassified. Therefore, ~his grievance is dismissed. DATED at Toronto this 27th day of November,- 1989. Belinda A. Kirkwood, ~%'aee0hairpers0n "I dissent" (Dissent attached) M. Lyons, Member m' .... G. Mi lley, Menber Page 12 G~B 724/88 OPSEU and Ministry of Natural Resources Boileau Grievance Dissent of Michael Lyons, Board Member I concur with tke reasoning of the majority of the Board in their finding - that the first paragraph (of each of the Resource Technician, Senior job standards) sets out criteria which, if met, would entitle the employee to be classified in the oosition. However, the following paragraphs of the stand- ards use words such as."also included are positions..." and "positions of employees...are also included", which leads the Board to find that the followr ing paragraphs set out in the standard create separate criteria, which, if met in themselves, also entitle the grievor to classification at that level. I further concur with the majority of the Board when they state - therefore, in order to be classified as a Resource Technician., Senior 2; the grievor...must meet the criteria of any of the paragraphs describing the posi- tions or responsibilities. In this case, the Union argued,, inter alia, that the grievor is an "employee responsible on a district-wide basis for field control of Timber revenue sources..." and therefore meets the criteria necessary to be classified as an RTS 2, (i.e. paragraph 2 of the RTS 2 standard). That the grievor carried out his duties on a district-wide basis was not at issue in this matter. In fact, as part of his arguement, counsel for the employer pointed out.that one of the main distinguishing factors between emDloyees classified in the Resource Technician series and emDloyees classified in,the Resource Technician, Senior series is that the latter have district-wide responsibility. Therefore, the matter comes down to whether or not.the grievor is "responsible...for field control of Timber revenue sources". In my opinion, he is. Page 13 GSB 724/88 Boileau (OPSEU & MNR) Dissent of Michael Lyons, Board Member . Although the percentages of time spent by the grievor on each of his functions are in dispute, the grievor's Position Specification (Ex% 1) indicates that it is the grievor's function to - negotiate the sale of forest products, identify suitable markets, assign scalers, audit performance and control timber revenue on a district-wide basis. (Emphasis added) No doubt that in carrying out his duties ~d. responsibilities, the grievor consults with Mr. Barry Warwick, the District Forest Manager and/or Mr. Art~Marvin, the District Operations Co-ordinator and/or Mr. John Wilson, the Unit Forester. As well, the grievor reviews various matters with these peqple and generally keeps them up to date on-his activities. .How- ever, this is a normal practice between supervisor'Cs) and employee(s) at every level in all organizations. It does not diminish the grievor's responsibility. Although Mr-. Wa~ick testified that it is he who finalizes the prices, it seems clear to me that, de facto, he confirms the price recommended by th~ grievo~. In fact, according to the evidence of the grievor, on at least One occasion he was able to negotiate a price for timber higher than both Mr. Warwick and Mr. Marvin thought possible. For these reasons, I would have allowed the grievance and ordered the grievor to be classified as an RTS 2 with retro- activity (which was not challenged by the employer) to July 1, 1987.