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HomeMy WebLinkAbout1988-1047.Tilden.93-04-07~, ~., ~ /~'"'~ ONTARIO EMPLO¥~'S DE LA COURONNE CROWN EMPLOYEES DE L 'ON TARIO ,~. GRIEVANCE C,OMMISSlON DE ,~ SETTLEMENT REGLEMENT BOARD , DES GRIEFS ;180 DUNDAS STREET WEST, SUITE 2100. TORONTO, ONTARIO. M5G IZ$ TELEPHOIVE/T~L~PHONE: (416) 326-~358 180, RUE DUNDAS OUEST, BUREAU 2tO0, TORONTO .[ONTARIO). MSG ~Z8 FACSIM/L.E/T~L~COP.~E (4~6) 226-1396 1047/88 IN THE F.%TTER OF AN ARBITP~TION Under THE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN " ' OPSEU (Tilden). Grievor ,. .... The Crown in Right of Ontario .. (Ministry of Housing) .... Employer BEFORE M. Gorsky Vice-Chairperson I. Thomson Member M. O'Toole Member FOR THE J. Miko GRIEVOR Job Evaluation Officer Ontario Public Service Employees Union FOR THE S. Patterson RESPONDENT Counsel Legal Services Branch Management Board of Cabinet HEARING December'10, 1992 1 DECIgION BACKGROUND The Grievor, Ken Tilden, filed a grievance, on September 1, 1988 claiming that he was improperly classified as a Community Planner 4 (Atypical) and requested that he be properly classified as a Community Planner 5. Hearings with respect to this matter took place on March 1, 1989, October 13, 1989, January 15 and 18, 1990, and March 5, 1990. The decision of the Board, dated June 20, 1990, allowed the grievance as follows: The only way in which the improper classification of the Grievor can be remedied is by making a Berry order that the Employer create an appropriate classification for him. In OPSEU (Union Grievance), 1642/85(b) (Verity), the Board stated at p.22: "The remedy for improper classification is proper classification. In the Judicial Review of the Grievance Settlement Board· Decision in OPSEU (Carol Berry, et al) and Ministry of Community and Social Services, 217/83, the Judgment of Mr. Justice Reid released March 13, 1986 makes it clear that the Board's obligation under s. 19(1) of the Cro~.n Employees' Collective Bargaining Act is 'to decide the matter' with a remedial mandate 'to effect a proper classification'. The authority to classify employees remains, of course, with the Employer. The Board can go no further than to order the Employer to find or create an appropriate classification .... In this case, it appears that no existing appropriate classification can be found and it will be necessary for the Ministry to create an appropriate -' classification. The Board shall retain jurisdiction on the proper classification of the Grievor ... in the event that the parties encounter any difficulty in the interpretation or implementation of this Decision. 2 On January 29, 1991, Joanne Miko, Job Evaluation Officer for the Union, sent a letter to Mr. A. Ryder, who acted as Union counsel at the hearing, which letter ('Exhibit 1) is as follows: RE: Tilden, GSB 1047/88 To date, we have not received a new class standard and notice to bargain wages for this Berry-type decision. Could you please make arrangements to have the Board reconvened to set a time-frame for the Employer to comply. The award was issued June 10, 1990, which should be sufficient time to indicate some progress. On February'5, 1991, Mr..Ryder sent a letter (Exhibit 2) to the Registrar~ of the Board, as follows: The~ Board"~ award_in this matte~, dated June 10, 1990, directs the employer to ~stablish' 'a ~Q' elassificatioh for the grievor. To date, it has not done so, no new class standard or a notice to bargain with respect to the wages for a new standard has been served and we have received no explanation for the absence of any activity. In the circumstances, we are asking that the Board reconvene the matter so that steps can be taken to see that the Board's order is honoured. On April 5, 1991, Mr, Ryder again wrote to the Registrar (Exhibit 3) as follows: We have been advised by our client that the employer has delivered a new classification as required under the Board's order. In the circumstances, our request for a further hearing in this matter is withdrawn. On February 27, 1991, Brent Gibbs, Director, Employee Relations Branch of the Human Resources Secretariat of the Management Board of Cabinet, wrote a ietter (Exhibit 4) to Mr. A. Todd, chief of collective bargaining for the Union, to which was attached a class standard for: "Co-ordinator, Landscape 3 Architectural Services" with reference to "GSB ~1047/88, K. Tilden, Grievor." The letter went on to state: In accordance with Article 5.8 of the collective agreement, we are prepared to meet to negotiate the salary range for these classes. Please contact Kathy Brown in this office with respect to meeting dates. The class standard referred to in Exhibit 4, was marked as Exhibit 5 to these proceedings, and is as follows: Scientific and Professional Services S P - 1 0 A Re sou'rc e s ...... ' ..... "'' ': --' Planning and'"' ......... :" Management. Co-ordinator, Landscape Architectural Services . .. CO-ORDINATOR, 'LAND~CAPE ~ARCHITECTURAL SERVICES : ..... " This class covers positions which provide landscape architectural design and site development consultative services for social housing projects. These employees operate either as head office specialists involved in developing internal policies, standards and guidelines and providing a consultative service to Ministry clients and/or as regional co-ordinators delivering the landscape architectural program for both existing and new construction projects under the Ministry's non-profit program. As Co-ordinator, Landscape Architectural Services in head office, the employees are responsible for preparing and recommending ~nternal policies, procedures~ standards, guidelines and manuals on the methods and materials for site development construction and maintenance functions. In addition, employees provide a professional consultative services to Ministry clients~ by co- ordinating landscape architectural projects including recommending the retention of consultants, developing requests for proposals , evaluating consultants submissions, recommending hiring of consultants. They also monitor the progress of their work and ensure compliance with the objectives of the proposals. They are responsible for research and development projects related to site development, i.e. construction materials, design or construction practices or contract administration procedures and prepare appropriate reports for review. They devel_op and conduct training seminars 4 on landscape architecture issues for Ministry clients. They chair the Landscape Services Committee. These employees will also perform the following duties relating to the provision of consultative services to local housing authorities and non-profit groups for specific regions. As required, they participate in the budget review and long term planning processes for these agencies. As required, they contribute to the plans review process for new construction projects by participating in site evaluation, reviewing design drawings and specifications at various pre-construction stages for compliance to program, municipal and other government agency requirements and tenant needs; participate in the retention of consultants; advise .housing agencies and groups on cost effectiveness and suitability of design and conduct inspections as required throughout the construction process. As Regional Co-ordinator ~of Landscape Architectural Services, the.emp~oyeg~ are. rgsp0ns~ble for. ~imple~enting internal policies, proceduFes, s~andards, guidelines and manuals for site development construction and maintenance functions. Employees also provide a professional consultative service to local housing authorities by co- ordinating landscape architectural projects including. recommending the retention of consultants, developing requests for proposals, evaluating consultants submissions and recommending hiring of consultants. They monitor the progress of their work and ensure compliance with the objectives of the proposals. They are also responsible for tender review, supervision of construction and final acceptance of the project. They participate in the budget review and long term planning process for these agencies. These employees will also perform the following duties relating to the provision of consultative services to non-profit groups for regional projects. They participate in the budget and long term planning processes for these agencies. They contribute to the plans review process for new construction projects by participating in site evaluation, reviewing design drawings and speCifications at various pre-construction stages for compliance to program,~municipal and other government agency requirements and tenant needs; participate in the retention of consultants; advise housing agencies and groups on cost effectiveness and suitability of design ~nd conduct inspections throughout the construction process. These employees are members of the Ministry's Landscape Services Committee and conduct 5 training seminars for Regional local housing authorities and, as required, for other Ministry clients. SKILLS & KNOWLEDGe: - Thorough knowledge and related experience in the field ~of landscape architecture and designi including construction practices, contract administration and materials· This. would normally be acquired through formal training in landscape architecture from a recognized educational institution or the equivalent combination of education, training and experience. - Ability to conduct feasibility s~udies, prepare/review plans and specifications related to landscape architectural project. - Ability to develop internal policies, procedures, guidelines as.related to landscape architecture. - ~ilYty~'~0'de~lo~ ~'"'~&'~iver tr~ining'p~ograms. - Well developed administration, negotiation, interpersonal and communication skills. The parties held meetings to discuss the class standard on November 29, 1991 and February 13, 1992. The Union regarded certain areas in the proposed class standard, as set out in Exhibit 5, as being deficient in that they did, from its perspective, inadequately reflect the duties and responsibilities of the Grievor. On February 18, 1992, Ms. Miko wrote a letter to the Registrar of the Board (Exhibit 6), which is as follows: It is the union's position that the employer has not created a proper classification in response to the Board's award. We therefore, request that the Gorsky pane] be reconvened to deal with this matter. 6 We would appreciate your assistance in arranging an arbitration hearing as soon as possible. The class standard which the Union proposed with respect to the Grievor (Exhibit 7) is as follows: Scientific and Professional Services S P - 1 0 A _Resources Planning and Management Co-ordinator, Landscape Architectural Services CO-ORDINATOR, LANDSCAPE ARCHITECTURAL SERVICES This class covers positions ,of employees who provide landscape architectural design and ~site development consultative services for social housing projects .' -throughout.the Province. These employee~ are the head office .specialists involved in developing .internal pol~ci'es, standards and guidelines and' Provide a consultative service to Ministry staff and client groups. They co-ordinate the delivery of the landscape architectural 'program for both existing and new construction projects funded by the Ministry and ensure the proper implementation of policies, procedures and standards in the field of landscape architectural and site development for the Ministry. As Co-ordinator, Landscape Architectural Services in head office, the employees are responsible for preparing and developing internal policies, procedures, standards, guidelines and manuals on the methods and materials for site development design, construction and maintenance functions. In addition, employees provide a professional consultative service to Ministry clients by co-ordinating landscape architectural projects including recommending the retention of consultants, developing requests for proposals, evaluating consultants submissions, recommending hiring of consultants. They also monitor the progress of their work and.ensure compliance with the objectives of the proposals. They are responsible for research and development projects related to site development, i.e. construction materials, design or construction practices or contract administration procedures and prepare appropriate reports for use in the field. They develop and conduct training seminars on landscape architecture issues for Ministry clients, staff, interested public and consultants. They chair special committees on site development design, construction and maintenance for Ministry staff, 7 These employees will also perform the following duties relating to the provision of consultative service~ to local housing authorities and non-profit groups for specific regional offices. A~ required, they participate in the budget review and long term planning processes for these agencies. As required, they contribute to the plans review process for new construction projects by participating in site evaluation, reviewing design drawings and specifications at various r~re-construction stages for compliance to program, municipal and other government agency requirements and tenant needs; participate in the retention of consultants; advise housing agencies and groups on cost effectiveness and suitability of design and conduct inspections as required throughout the construction process. SK~LLS & ~NOWLEDGE: - Th0rough knowledge and related experience 'in the. ....... field of landscape architecture~ and. design, including construction practices, contract administration and materials. This would normally be acquired through a degree in landscape architecture from a recognized educational institution or the equivalent combination of education, training and experience. Membership in the Ontario Association of Landscape Architects. - Ability to conduct feasibility studies, prepare/review plans and specifications related to landscape architectural project. - Ability to develop internal policies, procedures, guidelines as related to landscape architecture. - Ability to develop and deliver training programs. - Well developed administration, negotiation, interpersonal and communication skills. - Good interpersonal skills to mediate disputes and conflicts between owners and contractors and to assign and direct the 'work of consultants. One of the positions taken on behalf of the Employer was that management retained the exclusive right to determine the content of a class standard and that if the Union was dissatisfied with the 8 class standard prepared in compliance with the Board's D~Lr2~ order, then it could only obtain redress by once again filing a grievance.. Thus, the Ministry took objection to the Board taking upon itself the determination of the content of the class standard. DISCUSSION OF THE EMPLOYER'S OBJECTION TO ARBITRABILIT¥ In support of its position that the remedial jurisdiction of the Board, in the case 'of a class standard established by management pursuant to a Berry-type direction to create a proper classification, did not include .the power to review the content of the standard, decide whether it was properly drafted, and if it was found that it had not been, to order the Employer to re-draft it as directed, counsel for the Employer relied upon the decision of the Board in Anderson et al., 497/85 (Roberts). In that case, in the spring of 1985, the Board dealt with classification grievances filed by 200 conservation officers on the grounds that~they were improperly classified as Resource Technicians 3, having regard to the actual duties then assigned to them by the Ministry of Natural Resources. By agreement, the parties went f~orward with the case of one grievor, and agreed to take that evidence as representative of eight grievors in the Kenora District while ho]ding the remaining grievances in abeyance and applying to them, as far as possible, the conclusions reached in ~hat arbit~'ation. 9 on August 26, 1986, the Board issued its first award in which it accepted the evidence that the grievor's work had changed from technical and management duties, of the sort described in the class standard for Resource Technician 3, to almost entirely enforcement- related duties which were mentioned only incidentally in the class standard. The Board made a Berr~ order, remitting the matter to the Ministry for the purposes of establishing a proper classification for the grievors. The Ministry, in early 1987, reclassified the grievors to only a change in title and the grievors, as in the case before us, asked the Board to reconvene on the ground that its order had not been properly implemented by the Ministry. A second Board hearing was held on February 6, 1987, when the Ministry argued that the Board's jurisdiction was spent and the grievors' only remedy was to start the process all over again by filing new grievances. On February 10, 1987, the Board, in its second decision, held that it had the jurisdiction to consider whether the Ministry had properly implemented the first award of August 25, 1986. On October 15, 1987, the Board held a third hearing and issued its decision on that day finding that the Ministry had not satisfied the requirements of its original award and again remitted the matter to the parties for the purpose of establishing "on an urgent basis" a proper classification for the grievors. In ali of 10 its decisions the Board retained jurisdiction pending implementation of its award. In November of 1987, the Ministry received government approval to create a new class standard which created a higher classification called Resource Technician 4. As is the case in the the matter before us, Union was not satisfied with the content of the classification and no agreement was reached with management. The case once again came on before the Board on May 9, 1989 for a. fourth hearing relating to the classification grievance fil~ about four years previously. At the fourth hearing, the employer took the same preliminary objection to the Board's jurisdiction as was taken in the case before us, saying that the Board had no jurisdiction to review the content of the class standard proposed by the Ministry in response to the Board's Berry~type award, and that the Board had no jurisdiction to direct the correction of the standard to reflect properly the duties and responsibilities of the grievors. The Board, on June 14, 1989, gave effect to ~he Ministry's preliminary objection and declined jurisdiction to decide whether the content of the class standard was properly drafted either in form or in substance. Counsel,for the Employer relied on certain of the reasons given by the Board in Anderson. 11 In the Anderson case, the Board held that the exclusive management right under s.18(1) of the Crown Employees Collectiv~ Bargaining Act to determine the classification of positions prevented it from interfering with the classification system or the application of it to positions in the Public Service. The Board rejected the union's position that the jurisdiction of the Board under Berry was to effect a proper classificati6n, which necessarily includes the identificati6n and correction of shortcomings in the existing class standard: In our opinion, however, the Divisional Court in Berry did not intend to overturn the entire body~ of ........ ...jurisprudence_of this Board regarding ithe limitation, which Section 19 (1) of the Crown Employee's Collective Bargaining Act places upon our jurisdiction. This limitation was not at issue in Berry. The court did not have an opportunity to consider it. And given the extensive nature of the applicable jurisprudence and its consistent application, we would not be induced to depart from it without a clear and unmistakable direction from the court to do so. This we do not have. It was common ground that the Board intended to refer s.18(1), not s.19(1). The Board held that the act of classifying a position was a narrow function of applying to the position an existing classification system which did not include a direction with respect to the drafting of the components of that system. It was this holding of the Board that counsel for the Employer asked us to follow. 12 The Board, in Anderson, regarded itself as being governed by a number of decisions of the Board which are set out at p.5 of that case. The limitation on its jurisdiction, said to be found in the cases referred to, is set out in re Rounding and Ministry of Community and Social Services (1976) 18/75 (Beatty.), as follows: In the first place it is readily apparent that the methods and principles by which positions are to be classified is, as a result of the most recent set of amendments to The Crown Employegs Collective Bargaining Act, a bargainable issue between the various employee representatives and the employer. However, by virtue of s. 17(1)(a) [now s. 18(i)(a)] of~that~ same Act~' it is manifest that having settled on a particular classification and job evaluation system,- the actual .... classification of positions is within the exclusive prerogative ,,o.f..th~.emplpycr~ ~ ~n the result 'and for purposes of'ehtert~iHing grievances Unde~+"s~ 17(2)'(a) of the Act [now s.18(2)(a)], in which an employee alleges that he or she has been improperly classified, it necessarily follows that this Board must take as a given and Cannot interfere either with the classification system agreed to and adopted 'by the parties or the application of that system to the various positions within the public service, Rather this Board's sold function in the resolution of .grievances alleging an improper classification, is to determine whet.her the employer is conforming to the classification system as it has been established and/or agreed to. .~. Id. at pp. 3- 4. Counsel for the Employer submitted that we ought to follow the reasoning of the Board in Anderson notwithstanding the fact that, the application for judicial review of the union to the Divisional Court resulted in the award being quashed and the matter remitted to the same panel of the Board for rehearing: Ontario Publiq ~m~loyees Union and David Anderson et al. and the Crown in Right of Ontario as represented by the Ministry Of Natural Resources and the Crown Employees' Grievance Settlement Boar~, unreported decision of 13 the Divisional Court dated September 21, 1990, which case was subsequently appealed by the employer to the Court of Appeal, where it has not yet been heard. In its reasons, the Divisional Court, per Campbell J., stated, at pp.l-2: The case turns on the application of the principle in Ontario Public Service Employees' Union and Berry v. Ontario Ministry of Community and Social Services (1985), 15 O.A.C. 15 at p. 20 (Div. Ct.) that the Crown Employees Grievance Settlement Board in a classification grievance, once it decides that a classification.~is wrong, has an unrestricted remedial jurisdiction to effect a proper · , . classification. · .,~ ............ Do~S.~h~,~n~{~t~d· ~emediai"j~risd~ti~',~'i~~ ~h6 case of a class standard established by management pursuant to a Berry-type direction from the Board to create a proper classification, include the powe~ to review the content of the class standard and decide whether it was properly drafted? The Divisional Court, at p.10, noted the finding of the Board: "... that the act of classifying a position was a narrow function of applying to the position an existing classification system which did not include the drafting of the components of the system, that the Board had no jurisdiction to decide whether, the classification or class standsrd applied to the position was improperly drawn and that it could not become involved in reviewing and drafting of ~he components of the classification system." The Divisional Court, at p. 14, identified three principles that govern the extent of the Board's jurisdiction: 1. The,right of the employee to grieve classification. 14 2. The duty of the Board to bring about the final and binding settlement of all differences between the parties, and to bring it about fairly, effectively and efficiently within a reasonable time. 3. The right of management to classify positions and the corresponding restriction of the Board's jurisdiction. In applying the governing principles, the Divisional Court stated, at pp.15-17: It is obviously the Board's view that it would make good labour relations sense to be able if necessary, in the somewhat unusual Berry type case, to review and direct in some manner the development of one component of the classification - in this case the class standard for hii 4 ·Resource Tec n c an. , ~h~ d~ar~ mig~t 'ch6ose not {o'e~e~d£d'e'that 'ultimate remedial power in this case or any other case. The Board might prefer to keep it in reserve as a lurking ultimate power, the mere existence of which might encourage.. management to get the Berry-directed reclassification right the first or second time instead of being able in extreme cases to come back forever with inappropriate classifications. To deny the board that ultimate po~er is to deny it a tool, necessarily incidental to the Berry power, that the Board obviously considers useful to effect the final resolution of disputes. The power to implement a proper classification must necessarily include the power to review the conten~s of that classification for sufficiency and to instruct management to alter or amend the class standard to reflect properly the duties, responsibilities, etc. of the grievors. The power to require management to create a proper classification necessarily includes the power to require management to get it right. To hold otherwise would restrict the unrestricted remedial jurisdiction, referred to in Berry, to effect a proper classification. To hold otherwise would defeat the legislative object of efficient and final settlement of grievances. it would promote the very mischief described by the Board; multiplicity of proceedings, exhausting and protracted delay, frustration, needless inefficiency. The decison of the Divisional Court further states, at p.18: It made no labour relations sense 'to the Board to decline i'ts jurisdiction and attract the mischief__qf lack of finality and bad labour relations practice. The Board described the impugned jurisdiction as a logical and efficient step toward a final and binding resolution of the dispute. The Board declined jurisdiction not on the grounds that it made any labour relations sense to decline, but because the statutory restrictions prevented it from taking steps it considered logical, reasonable, and efficient to carry out its mandate. Finally, the Divisional Court considered whether the third .principle, involving management's right to classify positions under s.18(1) (a), and the corresponding restriction of the Board's jurisdiction "required the defeat of the employee's right to grieve classification and the Board's duty to effect final settlement of all grievances?" The Divisional Court, at p. 19, did not find that Berr~ suggested: "That. the right to grieve classification and the duty to settle all grievances finally and efficiently must yield to management's classification rights or the corresponding restriction on the Board's jurisdiction." Further, at pp.19-20, the Divisional Court observed that while the power "contended for by the employee" involved the Board in 16 some classification activity, this was "no more than is necessarily incidental to the employee's right to grieve classification and the Board's power Board [sic] to effect the final settlement' of classification g~ievances. This necessarily incidental activity on the fringe of the classification system reserved..to the employer under s.18(1)(a) does not represent any incursion .into the statutorily protected zone of management classificatio~ rights." This, the Divisional Court considered to represent (at p.20): "the narrow ambit of necessarily incidental Board activity around the outer edge of management's protected classification zone." It is evident that the Divisional Court regarded such incursions by the Board as being (at p.21): "entirely a matter for the Board." That is, it is up to the Board to decide when it is appropriate to exercise: "its remedial jurisdiction to review the content of the class standard and instruct management to alter or amend it." It is up to the Board to decide whether to: "take the view that Such cases would be rare and that the power should only be exercised in extreme cases.~'' In th~ circumstances, where we are dealing with a matter of jurisdiction, it would be inappropriate for this panel of the Board to disregard the decision of the Divisional Court, which is binding on us. FIRST ALTERNATIVE POSITRON OF THE EMPLOYER 17 Counsel for the Employer argued that even if the Board had the power recognized by the Divisional Court in Anderson, it would first be necessary for this panel to review the standard created by the Ministry in the light of the duties and responsibilities of the Grievor (Exhibit 5) and decide whether his core duties and responsibilities have been reasonably captured by that standard. If we decided that the standard created by the Ministry has reasonably captured the Grievor's core duties and responsibilities, that would end the matter. Only if we decided against the position of the Employer would we have to consider the extent of our re edial jurisdiction.. It was submitted tha we ug~ e t this case as if it had not arisen following the issuance of Berry order. We were asked to apply the best fit test to this classification without any consideration of how the class standard came to be drafted. That is, as if this were an ordinary best fit case. It was the~ position of the Employer that there was a reasonably good fit between the core duties and responsibilities of the Grievor and those set out in the class standard prepared by the it (Exhibit 5) pursuant to the order in our original decision. Counsel for the Union submitted that the Employer had failed to incorporate into Exhibit 5 those matters which the Board had emphasized in its decision. Reference was mad~ to the second last paragraph at page 3 of the award which stated: 18 At the time of the grievance, field work occupied between 50 and 60 percent of the Grievor's time with the balance of his duties being devoted to the co-ordinating function. At the time of the grievance, it was anticipated that field work would occupy 20 percent and co-ordinating functions, 80 percent of the Grievor's duties. Reference was also made to the statement found at pp.5-6 of the award: Mr. Gibson [the Grievor's supervisor and a member of management ] described the T Grievor' s primary responsibility as being in the area of co-ordinating the development and implementation of policies, procedures and standards in the field of landscape and site deve 1 opment ....... Reference was also made to the statement in the award, at p.6: The Grievor's role to support RHPO's continued, but the primary focus of his position was to establish technical standards to be employed by the Ministry in its programs. This resulted in the publication of guidelines to be used by such consultants as architects, engineers, and landscape architects working for non-profit housing entities. The decision to assign the Grievor to the · ordinating function was as a result of Mr. Ois' resignation during the course of the re-organization. Mr. Ois had been the Chief Landscape Architect (a management position) prior to his retirement. Counsel for the Union also argued that Exhibit 5 failed to incorporate certain findings in the award relating to the province- wide s~ope of the Grievor's position which was said to be interrelated with the co-ordinating function, but not necessarily 19. co-extensive with it. Reference was also made to the evidence of Mr. Gibson, at pp.9-10 of the earlier award: Mr. Gibson testified that the Grievor prepares procedures and standa..rds for use throughout the province. He stated that the Grievor must take the differing climactic conditions throughout the province into consideration. He also referred to the range of physical and geologica4 differences throughout the province which can affect foundations, retaining walls, paving, curbing, degrees of grading and selection of soft landscaping materials (grass, shrubs, trees). Mr. Gibson stated that in order to perform the coordinating function, the Grievor has'to know about other 'relevant conditions existing throughout the. province. ~.. . Counsel f0~ th~ Union also referred to a let{'~r' f~om" Mr.' Gibson to Mr.'P.G. Stonehouse Director, Technical Support Branch on May 26, 1987, where he stated: In considering this matter it is our opinion that the new .position should be reclassified at a higher level because: 1. The position is directing and managing all landscape operations in 4 of the 6 Regional Housing Program Office areas. 2. The two other RHPO areas are serviced by Landscape Architects classified at the same level as this position, although the amount of work is only 25% as heavy and with less travel. 3. In addition the position is responsible for establishing and publishing landscape standards, specifications, developing training material and executing Applied R & D duties. This position is- the Chairman of the Landscape Advisory Committee on Design, Operations and Maintenance but is not'~paid accordingly. 20 Counsel for the Union also referred to'the evidence of Karen Pashleigh who testified on behalf of the Employer at the earlier hearing and who classified the Grievor in his current position: She stated that she was also moved by the fact that there were two persons, one each in the south and central regions, who were doing landscape architectural work and were classified as Community Planner 4's. She concluded that the other persons performing landscape'architectural work. differed from the Grievor in that they had no significant co-ordinating duties. She stated that she considered the Grievor's co-ordinating duties and regarded them as being equivalent to the field duties in terms of the skills and knowledge required. (Decision, at p.15) ...... Pashleigh~,~ .. . .... .Reference was also made to. the evidence of Ms. ~e~ ':'' out at p.16 of the earlier award: In cross-examination, she acknowledged that while there are two employees, Messrs. Foley and McElroy, who hold the position of Regional Landscape Architect (Community Planner 4 (Atypical.)) in the southern and central regions, respectively, the person to whom they report (the Technical Manager RHOP in their office) periodically relies on the Grievor to deal with technical landscape architectural problems that cannot be dealt with by them. Counsel for the Union also referred to the finding of the Board (at p.16 of the earlier award): I am satisfied that his training, qualifications and experience in the field of landscape architecture is greater than that of either Messrs. Foley an~ McElroy, and that he serves as a trouble shooter for their Supervisors when the Grievor's greater skills, background and training are needed to solve difficult problems. It was the position of counsel for the Union that the Employer had, in Exhibit 5, failed to reflect the finding of the Board that 21 the duties and responsibilities of. the Grievor were different from the other employees with whom he was compared, and that he had to manifest significant co-ordinating functions throughout the entire province and had significant troubleshooting responsibilities. In reviewing Exhibit 5 and Exhibit 7, counsel for the Union made the following submissions: 1. That the Employer had failed, in the first sentence of Exhibit 5, to state the Significant fact that the positions involved ~'i,~ ..... ~-. the carrying.out of duties and responsibilities "th~ho'u~ the province." 2. That the second sentence of Exhibit 5 improperly combines into the standard the Regional Landscape Architect position and that of the Grievor. In doing this, the Employer was said to have included the Grievor at the same level as the Regional Landscape Architects from whom he had been differentiated in the earlier award. 3. In order to properly follow the directive= of the earlier decision, counsel for the Union submitted that the second sentence of the first paragraph of Exhibit 5 should be changed to demonstrate that there is but a single position where the employees so classified "are the head office specialists," ~dding that the service is provided not only ~for "Ministry 22 clients" but also for "Ministry staff". In t. he third sentence of the first paragraph of Exhibit 7, the Union has added words said to be consistent with the findings of the Board in the earlier decision recognizing the role of the Grievor's position in ensuring "the proper implementation of policies, procedures and standards in the field of landscape architectural and site development for the Ministry". 4. That paragraph 2 of Exhibit 5 be amended by removing the word "recommending" and substituting the word "developing," so that -~. ~ the .position would ~be.~ "responsi~l~ .for..preparing and. developing internal policies" etc. The Union also objected to the failure to include "design" after the word "site development" found in line 4 of para. 2 of Exhibit 5. 5. That the third last line of Exhibit 5 be amended so that the words "for review," be.substituted by the words "for use in the field." 6. The Union al'so requested that there be added to the se6ond last sentence in paragraph 2 of Exhibit 5 the words "staff, interested public and consultants." 7. That the second paragraph of Exhibit 5 be deleted after the words "they chair," and the following words added: "special committees on site development design, construction and 23 maintenance for Ministry staff." It was also the po'sition of the Union that the committee referred to in Exhibit 5 was incorrectly named. 8. Counsel for the Union also submitted that the'-third paragraph of Exhibit 5 failed to adequately, state the province-wide scope of the position in that the first sentence of that paragraph referred to "specific regions" instead of "specific -~. regiona~ offices" which latter description captured, as' the first one did not, the province-wide nature of the duties -., .. r ..... performed.. - .... , ~ - ,~ .. -- .... · 9. The reference to the position of "Regional Co-ordinator of Landscape Architectural Services", on .page 2 of Exhibit 5, amounted to an unwarranted inclusion of a position other than that of the Grievor's, which was the only position subject to the Berry order. This objection applied to the first two · paragraphs of page 2 of Exhibit 5 which are not found in the Union's submission (Exhibit 7). 10. That "membership in .the Ontario Association of Landscape Architects ought to have been added to the "skills and knowledge component" of the class standard, and that the last sentence of Exhibit 5 should be changed to: "Good interpersonal skills to mediate disputes and conflicts between owners and contractors and to assign and direct the work of 24 consultants." It was submitted that these changes were necessary in order to clearly establish the level of the work that would be compensated. Relying on the above submissions, counsel for_the Union asked the Board to order the Employer to adopt the language in Exhibit 7. Counsel for the Employer submitted: 1. That this Board had no jurisdiction to interfere with the inclusion'~f two positio'ns in a'~single°s~nd~rd, as to d0 s~ would undermine the very essence of the Employer's jurisdiction under the system of classification. In the view of counsel for the Employer, there were only two issues raised before us that could be reasonably regarded as core issues, or questions relating to the core duties of the position. I n Exhibit 7, the Union added the words "throughout the Province" to capture this aspect of the position. Counsel for the Employer suggested that it was inherent in Exhibit 5 that the Employer had recognized the findings in the Board's earlier award as to where and how the Grievor performed his work. Reference was made to the repeated references to the Grievor providing services to Ministry clients and his duties and responsibilities relating to consultants. Because the award indicated that clients could be found throughout the province as well as at head office, this was said to indicate with 25 Sufficient clarity the Province-wide responsibilities of a person so classified. 2. The second core function referred to was the co-ordina~ing function. This was said by counsel for the-. Employer to be explicitly recognized in the job title and throughout the remainder of the class standard as set out in Exhibit 5. Reference was made to the language employed in the class -standard .which was descriptive of co-ordinating functions or functions which were subsets of co-ordinating activity. Specific-reference was made to the. seventh line .of ~Exhib..i.~,~.. 5, being with respect to "co-ordinating landscape architectural projects including reconm~ending the retention of consultants" etc. Also referred to was a sentence in the second paragraph of Exhibit 5: "They also monitor the progress of their work and ensure compliance with the objectives of the proposals." 3. Reference was also made to the requirement found in the third sentence of the second paragraph in Exhibit 5 involving the monitoring of the progress of an incumbent's work and ensuring compliance with the objectives of proposals as representing an aspect of the co-ordinating function. The co-ordinating function was also said to be found in the second and third lines of the third paragraph of Exhibit 5: "provision of consultative services to local housing authorities and non- profit groups for specific regions." Relying on the above 26 language-, it was submitted that the co-ordinating functions identified in the first award were captured in the language of the standard prepared by the Employer (Exhibit 5). 4. In addition, counsel for the Employer submitted that a' number of the changes introduced into .Exhibit 7 by the Union were not based on any finding in the first award. In particular reference was made to the following: a. It was submitted that the Board, in its award, had not found facts that supported.a conclusion that the'Grie~or developed internal policies etc., in the sense that his was the last word. It was submitted that the evidence found that the Grievor played an important role in the development of internal policies, but that the final decision was made at a higher level of. authority. b. It was also submitted that the Grievor's duties and responsibilities with respect to the development and conducting of training seminars on landscape architecture ~ssues we,re for Ministry clients and did not include "staff, interested public and consultants." There was said to be no evidence with respect to whom the training seminars were developed or conducted for. 27 c. It was submitted that there was evidence in the award that the Grievor chaired only one committee: "Landscape Advisory Committee on Design, Operations and Maintenance" and that he had never chaired any other committee, and accordingly, the language in Exhibit..~7: "They· chair special committees on site~ development design, construction, and maintenance for Ministry staff" was inappropriate. d. It was submitted that the inclusion of a requirement for membership.~ in the~ .Ontario .Association of' ~a'nd'~'~ap'~ Architects was inappropriate. And that there was no finding in the first award that this was a requirement of the position, nor was such a requirement consistent with the provisions in the Manual of Administration relating to the subject of credentialism. In the guidelines concerning credentialism the following statement appears: Requiring formal job credentials may create systemic barriers for certain individuals or groups. Asking for credentials will discourage some people from applying for a position that, given their previous experience and. on- the-~job training, they might be otherwise qualified for. Having a credential does not necessarily guarantee better performance or greater aptitude. In addition, the guidelines state: Approved Use of Credentials A credentia.1 must only be used as a selection criteria when the accreditation is required by statute or regulation. 28 For some positions, however, the only method of obtaining the skills, knowledge and ability needed for effective job performance may be through a credential which is not required by statute or regulation. An example is training in occupational therapy acquired by completing an Occupational Therapy certificate. Before concluding that a particular credential is the sole means by which a candidate will acquire the needed job skills, the following questions should be answered: What skills and knowledge necessary for the job' are acquired by obtaining the credenfial? · Are there job duties that candidates lacking the credential could not perform? · Is it the whole credential which imparts the needed job skills or only some part of it, for example selected courses? (If so, ask only .for those. courses.) Can the skills learned through the courses be obtained by other means? · Are you confident that a particular credential provides the only means of ensuring effective~ performance? Use of Equivalencies Where it 'is possible to identify means other than credentials for acquiring the skills, knowledge and ability to perform the job, only these requirements should be advertised. Managers should exclude the requirement for a specific credential and replace it - in both the position specification and the job advertisement - with statements describing the knowledge, skills, or experience required to do the job. Similarly, indirect references to credentials should not be used, for example, "knowledge of behavioral analysis normally acquired through a degree in psychology". It was submitted that the words in Exhibit 5: normally be acquired through formal training in landscape architecture from a recognized educational institution or the equivalent combination Df education, training and experience" represents a realistic requirement, and that, 29 apart from the po]icy on credentialism sufficiently captures the requirements of the position. 5. The other objections raised by the Union were said to be outside of the range of core issues and at best "window- dressing." Accordingly, the Board was asked not to deal with them, as to d6 so would invite "unnecessary and needless litigation." 6. Relying on his earlier argument that we ought to look at this case as if Exhibit 5 were the class standard to which the Grievor had been appointed at the time we initially heard this case, we were invited to find that the Grievor's duties and responsibilities represented a good enough fit with Exhibit 5 and that, accordingly, it ought not to be disturbed. In doing so, it was submitted that we ought not to be affected with any minor variation in areas that were not really in the nature of core duties. · In response to the Employer's position on credentialism, counsel for the Union argued that~ the Grievor was a graduate .landscape architect and a member of the Ontario Association of Landscape Architects. It was submitted that the only way that the Grievor could be called a landscape architect was if he was a member of the Association. In addition, ~t was submitted that the 30 Grievor was presented to the public in the Employer's directory as a professional landscape architect. Counsel for the Employer referred to soll(1) of the Ontario Association of Landscape Architects Act which provides that: ... This act does not'affect or interfere with the right of any person who is not a member of the Association to offer or provide services similar to those offered or provided by .a landscape architect in the Province of Ontario. DISCUSSION AND ORDER Except for Anderson, no case was cited involving how the Board should view the product of an employer in its attempt to comply with a Berry order. There is a great deal of jurisprudence dealing with how a panel of the Board ought to read a class standard, and a number of rules have been developed concerning the application of the "best fit" principle. Counsel for the Employer suggested that if we find that we have jurisdiction to review the Employer's attempt at compliance with the Berry order, then. we should bear these rules in mind.' The jurisprudence of the Board in determining a classification grievance is set out in Blahut, 1550/90 (Dissanayake) at pp.5-6: It has been said that in determining a classification grievance, the Board's task is "... to decide first whether or not the grievors are properly classified in their existing classification [Re Brick, 564/80 (Samuels) at p. 49]. It has also been held that in order to find that a position is improperly classified there must exist a substantial difference between the job being 31 performed and the job described in the class standard. In Re Dumond, 1822/90 (Kaplan) at p. 20 the Board stated: There is no reason, in our view, to interfere with the longstanding jurisprudence of this Board that a substantial difference between the job being performed and the job described in the Class Standard is a pre-requisite to a Berry' Order. Whether or not there is a "substantial difference" and what constitutes a "substantial difference" will be a matter for the Board to determine on the facts of each case. Counsel for the Employer, as has been noted above, asked that we 9pply this jurisprudence in the case before us as if there had been no Berry order, and as if Exhibit 5 represented the class standard to which the Grievor had been assigned by the Employer, which assignment he was grieving. It was argued that if we did this we would not find "a substantial difference between the job being performed and the job described in the Class Standard [being Exhibit 5]". The argument of counsel for the Employer is an attractive one, however, it overlooks the difference between examining a grievor's duties and responsibilities in the light, of an existing class standard and reviewing the Employer's actions in drafting a class standard pursuant to a ~ order. In the case of~ an existing class standard the "target" group to be "fitted" is, of necessity, diffuse. No specific set of duties and responsibilities have been targeted for inclusion, as is~ the case where a Berry order has been issued. 32 Also, while recognizing that a class standard may ordinarily include a number of different positions, this would rarely be the case where the standard was prepared in order to comply with a Berr_~ order, where a single position has been targeted by the Board. In the case before us, the Employer did. not attempt to demonstrate the propriety of including.the position set out at page 2 of Exhibit 5: ".Regional Co-ordinator of Landscape Architectural Services" in the class standard, except.for its argument that more than one position could be included in a class standard, and that the. Board had no jurisdiction to interfere where management had done so. In the absence of special facts, it is inappropriate, in purported compliance with a .Derry order, to add a position to the class standard in a case that relates to another position and to which latter position the order was directed. Accordingly, we find that the Employer failed to comply with our order by adding the first two paragraphs on the second page of Exhibit 5, and by its references to this position on page one. In reviewing the compliance of the Employer with the order made in our decision of June 20, 1990, we are mindful of the ~ur~sprudence of the Board in a usual "best fit" case that: Class standards are not intended or drafted to be a compendia of job functions. By their very nature they describe, in general terms the role of an employee within the public service and do not nor are intended to contain an exhaustive list of functions or duties to be carried out by persons within the Standard; nor are class standards intended to designate tools or methods by which the employees are to fulfil their duties. 33 (Sovereign, 241/ (Low) at p.6, Lcited with approval in Westover, 752/91 etc.(Kirkwood) at p.7) At p.8 of the Westover case, the Board stated: As class standards are a general description of a class of jobs, they cover a broad spectrum-of duties and functions, against which a particular job is measured. The purpose of the position is only one factor to consider. We are also mindful of the rationale of Vice-Chair Roberts in Parke[ 1528/88, at p.7, adopted in O'Brien-1485/91 (Verity) at p.16: In classifying a job, the "typical duties" set forth in the class standard are not the sole determinants of classification. Consideration also is given to whether a class standard is most appropriate to a job in terms of level of responsibility, complexity and qualifications of incumbents. In the light of the above, we would expect that a class standard prepared by an.employer as a result of our order, having a clearly identified position, would make it clear by express language that the position involved an incumbent in carrying out his or her duties and responsibilities throughout the province. Inasmuch as one of the other principal areas of dispute between the parties at the time of the original hearing related to the role of the Grievor as a co-ordinator of the delivery of landscape architectural programs throughout the province, the language of Exhibit 5 is sufficiently ambiguous as to cause us concern, inasmuch as it only refers to "regional co-ordinators". This difficulty cou]d be overcome if the language were changed to 34 ensure that this aspect of the class standard was free from ambiguity. As was noted in the Parker case, in classification cases "typical duties" can be affected by other considerations including "level of responsibility." In the absence of clear reference to the province-wide nature and to the co-ordinating function in the statement of the typical duties, the Employer has missed the mark in its general description. At the same time, we find the Union's attempt at drawing up its version of an appropriate class standard (Exhibit 7), too frequently departs from a general description that covers a broad spectrum of duties and functions against which a particular job is measured. The fact that the standard is the product of a Berry order does not render inapplicable significant portions of the earlier jurisprudence of the Board, above referrred to, and the new class standard is not intended to represent a recitation of ~the Grievor's duties and responsibilities. Although it is the Grievor's job for which a class standard has been prepared, it is not limited t~ the Grievor's job, nor is it required to be "a compendia of job functions". The general rules applicable in ordinary classification cases must be a~apte~ to meet · requirements of a Berr_r~ order. As noted above, the Employer urged us, if we concluded that Exhibit 5 does not amount to a proper compliance with our earlier order, and if we accept the decision of the Divisional Court in Anderson as binding on us, to remit the matter back to the Employer. The. Union, also relying on the reasons of the Divisional Court in Anderson, requested us to either accept its drafting of the class standard (Exhibit 7) or "instruct management to alter or amend the class standard to reflect properly the duties and responsibilities, etc." of the Grievor (Anderson at p.16). At p.21 of Anderson, the Divisional Court made it clear that: It would be entirely a matter for the Board whether it considers this or any other case appropriate for the exercise of its remedial jurisdiction to review the content of a class standard and instruct management to alger or amend it. The Board might take the view that such cases would be rare and that the power should only be exercised in extreme cases .... [H]owever reluctant may be the Board [to] exercise such jurisdiction, the power is in /aw available to the Board in any cases it considers it necessary in order to establish a proper classification pursuant to a Berry-type direction. The Employer failed to adequately express in its draftsmanship the province-wide and co-ordination functions above referred to. By this or~er we instruct management to alter or amend' the class standard set out in Exhibit 5 to reflect properly the provfnce-wide and co-ordinating duties of the Grievor. At he same time, in responding to the Union's submissions: 36 1. We are not satisfied that the Grievor deyeloped "internal policies, procedures, standards, guidelines'and manuals on the methods and materials for site development construction and maintenance functions" as set out in the second paragraph of Exhibit 7, .and we have concluded that the word "recommending" better represents the nature of what the Grievor does in these circumstances. Substituting the word "developing" for the word "recommending" 'leaves the impression that the Grievor's responsibility is at a higher level than it actually is. The use of the word "preparing" sufficiently indicates the Grievor's iavolvement in the process. 2. We do not regard the choice of language in paragraph 2 of Exhibit 5 (third last sentence; to require the addition of "for use in the field" to adequately cover the general description of the class of job intended to be covered. Similarly, we do not regard it to be necessary to add the words "staff, interested public and consultants" to the second last sentence in Exhibit 5, as was done in Exhibit 7. In keeping with the intention of avoiding too great particularly, the language of the second last ~ sentence of the second paragraph of Exhibit 5 would be sufficiently descriptive if it read: "They develop and conduct training seminars on landscape architecture issues." For the same reason, there is no reason to particularly mention a committee that the ~rievor' has chaired and the 1,~st sentence in paragraph 2 of Exhibit 5 37 should, be amended so that it refers to a genera] responsibility to chair special committees of a certain kind. 3. we do not agree with the suggested change in the first sentence of paragraph 3 of Exhibit 5. Once.again, Exhibit 7 has chosen language which is too particular. We have also concluded that the weight of the evidence does not ~ndate a requirement that an incumbent hold membership in the Ontario Association of Landscape Architects and that there is no reason to depart from the principles enunciated in the credentialism policy referred to above. 5. We have also concluded that the Employer's skills and knowledg~ requirement: "well-developed administration, negotiation, interpersonal and communication skills" adequately addresses this skills and knowledge component. We are of the view that the Divisional Court, in Anderson, provided that the Board could address problems arising out of disputes concerning the drafting of~class standards following the issuance of a ~ order employing graduated responses. When the Board concludes that an employer has not prepared an adequate class standard, it is unnecessary for the Board to draft one and order the Employer to incorporate it. If this we¢'e done in many cases, there .i.s a danger that the Board would he called upon to do so in .38 all cases. For the sake of the relationship between the parties, we have chosen to highlight the areas where we regard the provisions of Exhibit 5 to be deficient rather than to draft what we regard to be a class standard that complies With our order, and leave it to the parties to work out a suitable accomodation. This does not mean that we would not draft the standard in an appropriate case, more like the Anderson case, where there was clearer evidence of management's recalcitrance. We urge the parties to meet without delay and draft a corrected classification. We note that our original order was signed in June of 1990. We feel that it has taken far too long to comply with our order. The Board, of'course, will continue to retain the jurisdiction as set out in the original award. Dated at Toronto this ?th day of April, 1993. M. R. Gorsky- Vice Chairperson I..~he(m~on - Member 'Toole - ~4ember