HomeMy WebLinkAbout1988-1233.Avery & Broderick.90-02-19 ONTARIO EMPLOYeeS DE LA COURONNE
~ ' CROWN EMPt_O YEES DE L 'ONTAR~O
"' GRIEVANCE C~OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WES?, TORONTO, ONTARIO. MSG 7Z8 - SUITE2'100 TELEPHONE/T~L~PHONE
180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG IZ8- ~UREAU 2'~0~) (416) 598-0688
1233/88
IN THE MATTER OF kN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ~CT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Avery/Broderick)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Natural Resources)
Employer
Before: R.L. Verity Vice-Chairperson I. Freedman Member
D. Montrose Member
For the Grievor: B. Rutherford Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
For the Employer: M. Paul
Acting Co-ordinator
Staff Relations
Ministry of Natural Resources
Hearings: April 10, 1989
July 4, 5, 6, 7, 1989
October 11, 12, 1989
DECISIO.N
In this matter, Rick Avery and John Broderick filed
identical grievances dated October 17, 1988 alleging improper
classification as Resource Technician 3, The grievances filed
request reclassification as Resource Technician, Senior 1, with
full ret~oactivity to March 15, 1988, together with interest.
Both 9rievors work as "forest technicians" in the
Ministry's Lindsay Oistrict. Mr. Avery has held his position
since February 1964 while Mr. Broderick's incumbency began on
June 1, 1988. Both grievors are long service employees.
The grievances allege that the relevant position
specification form was outdated and inaccurate. Subsequently, a
revised position specification and class allocation form was
agreed upon, after much discussion and several revisions.
The revised form (Exhibit 3') reads, in part, as
follows:
2, Purpose of position
To implement, supervise and audit forest management
activities .on Crown, Patented and Agreement Forest
prooerties in Lindsay District. To organize and
implement the Woodlands Improvement Act and provide a
forest management and extension service to private
landowners within an assigned area, and other assigned
duties on a district basis.
3
3. Duties and related tasks
1. Carries out W.I.A., forestry extension and public
relations duties such as:
- providing written and verbal forestry assistance
and an advisory service to private landowners by
40% conducting property inspections with landowners
including consideration of landowner's objectives,
describing various Ministry forestry assistance
programs and discussing possible silvicultural
treatments such as site preparation, soils
analysis, tree planting, stand improvement, and
providing harvesting and marketing advice on
forest products;
- gathering technical data regarding soil and site
characteristics, stand structure for woodlots and
plantation. Makes technical recommendations and
prepares silviculture prescriptions and management
programs under the W.I.A., A.S.A. and Advisory
Service programs for review by the Forest
Extension Technician and subsequent approval by
the Management Fores%er for such things as site
preparation, tree planting, tending operations,
woodtot management, multiple use considerations,
etc. based on approved forestry practices;
- selecting and marking trees according to
prescription for plantation thinning, stand
improvement, harvest or regeneration cutting,
etc,;
- assisting in the sale of forest products from
private lend. Includes tree marking, preparing
computerized timber volume estimates, advertising
timber sales, offering landowner advice on current
'' prices and market situations, providing advice on
timber sales contracts, and follow-up assistance
to landowner during cutting operations;
- providing extension service re. forest insect and
disease identification and control;
- oromoting the PLF program, forestry education and
awareness by conducting talks and tours with
students, boy scouts, Junior Rangers, manning
M.N.R. exhibits at fairs and field days; writing
resource news articles and answering public
inquiries re'lating to all aspects of forestry,
tree care, and general integrated resource
management.
2i Carries out Forest Operations by"
4
- implementing and supervising forestry activities
such as tree planting, tending data collection,
35% eto., on an assigned area to achieve output
targets; interacts with the Forest Operations
Manager, the Forest Extension lechnician and the
Management Foresters re. current work program,
project planning, silvicultural prescriptions, and
recommending changes and improvements in existing
silvicultural techniques and equipment such as
site preparation or planting equipment;
- representin9 the Ministry as silvicultural
contract auditor, recommending corrective
measures, providing written evaluation of
contractors;
- preparing silvicultural project reports and maps;
maintains and updates W.I.A. files, silvicultural
cards, ledgers, etc.;
- supervising the training up to 2 contract staff
including assisting in selecting appropriate
candidates, preparation and assignment of duties,
establishing and reviewing performance targets.
3. Performs other Forestry related duties such as:
- maintaining and encouraging liaison between the
Ministry and forest products industries within
20% assigned area;
- assisting in the preparation of silvicultural
contracts and evaluating proposals;
- assisting Management Foresters with preparing and
maintaining management plans;
- organizing and co-ordinating, on a rotating basis
with other staff, reports and special assignments
of a District-wide nature such as the plus tree
program, mill ticence returns, the woodlot marking
program, acting as the lead person in development
of forestry computer programs and staff training,
planning and preparing budget and manpower
requirements for special projects such as gypsy
moth spray operations; assisting with the seed
crop forecast and collection, etc.;
- scaling of forest products cut on Crown or
Agreement Forest properties.
5% 4. Other duties as assigned.
In some respects, both parties now dispute the accuracy
of the revised position specification form.
Under the heading "purpose of the position" the
Employer contends that while the grievors "implement" 'the
Woodlands Improvement Act they "organize" their time but not the
work program. Under duty 3.4, the Employer maintains that the
grievors "implement" as opposed to "co-ordinate" special
district wide assignments on a rotating basis. Further, although
the position form makes several references to supervisory duties,
the Employer contends that the grievors perform no such duty.
The Union disputes each of the these contentions.
For its part, the Union alleges that under duty 2, the
grievors do not interact with the Forest Extension Technician.
In addition, the grievor Avery maintains that the revised form
inadeouately reflects his planning role. Similarly, the Employer
disputes each of those contentions.
However, the parties agreed that in other respects the
revised job form accurately reflects the grievors' current duties
resulting from the recent Ministry emphasis on privatization of
services. Both Avery and Broderick work under the direct
supervision of Forest Operations Manager Dave Pridham.
6
In his testimony, Nr. Broderick candidly acknowledged
his limited experience and the fact that he had not performed
many of the tasks described in the specification form. However,
he has acted as lead person in testing the computer program and
he has performed seed collection duties on a District basis.
Hr. Avery's evidence was more representative. Over two
days of hearing, he gave detailed evidence of the nature of
duties and responsibilities. The Board makes no attempt to set
out that evidence except in some salient respects. Essentially,
Mr. Avery provides a variety of technical procedures, clerical
services and public relations tasks in the implementation of a
broad range of services offered by the Ministry to private land
owners. He works in an assigned area in the Lindsay District
which encompasses some 11 townships.
In particular, Mr. Avery prepares draft Woodlands
Improvement Act Agreements after collecting data and preparing
prescriptions following private property inspections with land
owners. All draft agreements are submitted for review purposes
to the Forest Extension Technician, Tom Farmer. Mr. Farmer has
the responsibility for the technical content and administration
of W,I,A. Agreements in the District. Final approval of W.I.A.
Agreements is given by Acting Management Forester Geoff Higham.
In addition, Mr. Avery has performed certain district wide duties
on a rotating basis including mill licences, plus tree program,
assisting in site preparation contracts and assisting with tree
seed ~orecast.
However, the grievor has performed significant
administrative duties, by way of special assignment, in the gypsy
moth control program, on a provincial basis in 1986 and 1987 and
on a district basis in 1988. Although there is some dispute as
to the amount of time devoted to that assignment, the more
reliable evidence, we think, was provided by Lindsay District
Acting Management Forester Geoff Higham. Mr. Higham testified
that in 1986, Avery devoted four to six weeks in the gypsy moth
control program, in 1987 some six to eight weeks and in 1988
approximately eight to ten weeks. He acknowledged that Avery was
relieved o4 all regutar duties during the spraying operations in
all three years. In addition, Mr. Higham testified that Avery
had planning responsibilities in preparation for the aerial
spraying program from early December to the third week of April.
He also testified that during the pmanning phase, Mr. Avery
retained his regular duties.
The grievors are currently classified as Resource
Technician 3. The preamble to the Resource Technician Series
reads-
8
CLASS STANDARD:
PREAMBLE
RESOURCE TECHNICIAN SERIES
This series covers the positions of employees engaged
in the performance of operational duties in any one or more
of the specialized services, e.g. Forest Protection, Timber,
Fish and Wildlife, Lands, Parks, Research, etc.
Employees in positions allocated to this series may
perform a variety of duties ranging from those of a manual
nature reouiring only a relatively elementary understanding
of natural resource management to those of a technical
nature requiring independent judgement.
Entry into this series for candidates who are graudates
of an approved Technical School in Resource Management o~r an
approved related discipline is at the Resource Technician 2
level. At this level such employees receive training in
practical aspects of theories studied and, as experience is
gained, daily supervision is reduced to instructions
covering specialized technical problems.
Positions involving full time performance of Fish and
Wildlife management and/or enforcement duties are restricted
to employees who are graduates of an approved Technical
School in Resource Management.
Research Branch positions allocated to the third level
in this series wi'il normally be underfi]led by one grade for
a period not longer than one year, to allow for the
necessary "on the job" training in specific research aspects
of the duties involved.
Positions will be allocated to a specific level in this
class series only when ~]]. the requirements of that level
have been fulfilled.
DEFINITIONS FOR USE WITH THIS SERIES
Service-
Functional field equivalent of a Ministry Division,
e.g. Forests, Mines, Fish and wildlife, Parks, Conservation
Authorities, Field Services, Lands.
9
CRITERIA FOR RANKING FISH HATCHERIES
Type A - year round trout culture,
Type B - seasonal pond culture.
Type C - trough or jar culture,
CRITERIA FOR RAN~ING PARKS
1. Camper days
2. User days
3. Large natural environment
4. Complexity because of special situations.
Revised Hay 1, 1973
The Resource Technician 3 Class Standard reads:
CLASS STANDARDS:
RESOURCE TECHNICIAN 3
This class covers positions of employees performing
more complex, demanding and responsible technical duties
containing considerable latitude for decision making
check scaling; compiling lake development data; training
fire crew; operating type "C" parks or type "C" hatcheries;
carrying out Fish and Wildlife management and/or enforcement
work; gathering, assembling and compiling technical or
scientific data, preparing technical reports and/or plans;
assessing technical needs o¢ management or scientific
projects and submitting technical recommendations, etc.
any assigned area of responsibility,
They may supervise and/or train regular employees or
take charge of groups of casual employees and, in this
context, organize and schedule activities within the general
framework o¢ 'laid down plans or instructions and assume
responsibility for the quality and quantity of production
and for the work performance of assigned staff.
SKILLS AND KNOWLEDGE REQUIRED:
Ability to organize projects and supervise
implementation; initiative ~nd ability to assimilate new
10
techniques to be applied in a variety of situations; good
understanding of resource management principles.
October 1, 1970
The classification sought is Resource Technician Senior
1. The preamble to that series reads-
CLASS STANDARD:
PREAMBLE
~ESOURCE TECHNICIAN, SENIOR SERIES
This series covers the positions of Senior Technicians
in the field of natural resources management. Some
positions are those of specialists concerned with planning,
the provision of functional advice, policy and standards
control; other positions are those of supervisors involved
in the implementation of varied and complex resource
management programmes. The basic requirement for both
groups is a thorough knowledge of the principles of resource
management and technical expertise.
The working level of non-professional district staff
specialists positions is at the Resource Technician, Senior
3 'level. However, positions may be allocated above or below
this level, if, in the assessment of senior management, the
priority given to the management objectives of the
service(s) places greater or lesser demands on the position
than is typically found on a province-wide basis. The
reasons for such an assessment must be meaningfully
documented by senior management in each instance. In any
such allocation, the following two conditions must be met:
(a) The number of positions a_~t the Resource Technician,
Senior 3 level in any individual service must be
greater than the number of positions above this level.
('b) The number of positions at the Resource Technician,
Senior 3 level in any individual service must be
greater than the number of positions below this level.
11
Research Branch positions allocated to the first and
second level in this series will normally be underfitled by
one grade for a period not longer than one year, to allow
for necessary "on the job" training in specific research
aspects of the duties involved.
Positions of Senior Technicians assigned to the Mead
Office or Regional Offices are allocated to specific levels
in this class series on a comparative basis with district
positions in relation to such factors as planning, standards
control, policy interpretation and implementation, policy
recommendations, etc.
Positions will be allocated to a specific level in this
class series only when al~l the requirements of that level
have been fulfilled.
DEFINITIONS FOR USE WITH THIS SERIES
Servi ce:
Functional field equivalent of a Ministry Division,
e.g. Forests, Mines, Fish and Wildlife, Parks,
Conservation Authorities, Field Services, Lands.
Sub-Service:
Func%ional field equivalent of a Ministry Branch, e.g.
Forest Management, Mineral Resources Management,
Wildlife Management, Parks Management, Fire Control,
Lands Administration.
Work Planning'
Planning over a relatively short period where the major
factors are provided, e.g. objectives, specific
targets, expenditure allotment, time limitations,
areas, etc.
Loog-range Operational Planning:
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,
12
Research Station:
A formal unit or organization with permanently assigned
regular and/or probationary staff of Research
Scientists and non-professional research assistants,
conducting, on a year-round basis, scientific work
assigned Dy the Research Branch.
CRITERIA FOR RANKING FISH HATCHERIES
Type A - year round trout culture.
Type B - seasonal pond culture.
Type C - trough or jar culture.
CRITERIA FOR RANKING PARKS
1, Camper days
2. User days
3. Large natural environment
4. Complexity because of special situations.
~RITERIA FOR RANKING TREE NURSERIES:
Type A - Annuat production target of at least 10
mitlion seedlings or an annual production of
at least 6 million seedlings plus production
of special stocks 61us minimum of 10 species
produced.
Type B - does not meet the above requirement.
Revised May 1, 1973
The class standard of Resource Technician Senior 1
reads as follows:
CLASS STANDARD:
RESOURCE TECHNICIAN, SENIOR 1
This c'lass covers positions o¢ emp]oyees responsible
on a district-wide basis for technical contro] of a sub-
service; OR who act as senior assistants to district
technical or professional specialists in determining methods
13
and techniques, implementing policy and controlling
standards in one or more services on a district-wide basis.
Also included are positions of employees who assist
professional staff e.g. Foresters, Biologists, etc., in the
management of Forest Units, Lake Units, Private Lands, etc.
They participate in the development of management plans,
prepare initial agreements with private ]and owners, prepare
work plans and annual budget estimates, organize and
schedule units work and exercise budget controls.
Positions of supervisors who on a year-round basis have
administrative responsibility for a formal unit of
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 charge of type "B" parks or type "B"
hatcheries or second-in-charge of type "B" tree nurseries,
are included in this level.
In the Research Branch, this class covers positions of
non-professional, fully trained and experienced research
assistants in various disciplines of scientific research who
under direction of a Research Scientist, carry out assigned
technoto~ica'l phases of research and have full
responsibility for the validity of obtained or processed
data and the' preparation of reports involving preliminary
analysis of such data.
SKILLS AND KNOWLEDGE REQUIRED:
1. Supervisory ability; some administrative ability;
ability to co-ordinate several pro3ects and to prepare
work plans; persona] suitability.
2. Extensive know]edge and thorough understanding of
ob3ectives, methods and techniques applicable to the
assigned work area; good working know]edge of relevant
legislation.
October !, 1970
The Union's usage argument was based on the evidence of
Frank Taylor. Since !977, Mr. Taylor has held the position of
14
Senior Forest Extension Officer in the District now known as
Tweed-Napanee. He is classified as Resource Technician Senior I.
His job is to provide private ]and forestry services within an
assigned area in 13 townships. He testified that he prepared
initial W.!.A. Agreements. However the thrust of his testimony
is that he has supervisory responsibilities, prepares work plans,
has budgetary responsibilities and is required to maintain
complete cost records.
The Emp]oyer called 3 witnesses; namely, Dave Pridham,
Lindsay District Senior Forest Technician; Tom Jones, Regional
Human Resources Co-ordinator; and Geoff Higham, Lindsay District
Forest Resources Supervisor and currently Acting Hanagement
Forester. In particular, Nessrs. Pridham and Higham described in
minute detail the grievors' duties and their relationship to the
organizational structure of the Lindsay District,
The Union contends that both grievors are currently
misclassified under both the standards approach and the usage
approach. Under the standards approach, Ms. Rutherford argued
that the grievors' current duties are a hybrid combination of the
third and fourth positions described in the Resource Technician
Senior 1 Class Standard. Under the usage approach, she
maintained that Frank Taylor's duties are substantially similar
to those of the grievors. In support, the following authorities
15
were cited: OPSEU (Wallace and Jackson) and Ministry of Health
274/84 (Gorsky); BEALS and CAIN and Ministry of Community and
Social Services 30/79 (Draper); OPSEU. (Bahl et al.) and
Ministry of the Attorney General 891/85 (Samuels); and OPSEU
(Brick et al,) and Ministry of Transportation and Communications
564/80 (Samuels).
The Employer argues that both grievors are properly
classified and that the Union failed to discharge the onus of
proof under either the standards or the usage approach. Ms, Paul
referred to the following authorities: OPSEU (Mulligan] and
Ministry of Natural Resources 1675/87 (Samuels) andl OLBEU
(Cooper) and Liquor Control Board 6f Ontario 551/88 (Gorsky).
On the evidence adduced, the Board is not persuaded
that either grievor is currently misclassified as Resource
Technician 3. We are satisfied that the grievors perform
"complex, demanding and responsible technical duties" in
providing technical data for the purpose of "submitting technical
recommendations" as contemplated in the current class standard.
The Board finds that in performing the job of Resource
Technicians in the Lindsay District the grievors have no
responsibility for organizing and scheduling work programs, no
budget control authority and no supervisory or other
administrative duties. In preparing draft W.I.A. Agreements,
16
the evidence established that the grievors do interact with
Forest Extension Technician Tom Farmer. With regard to W.I.A.
Agreements, the required technical knowledge includes
identification of types of soil, site preparation and
recommendation for planting various species of trees. Normally
the draft agreement is prepared after one field visit with the
private land owner and some two hours of office work.
Essentially, the job of Resource Technician involves field data
collection and related duties together with clerical tasks. In
performing the job in question, the degree of responsibility and
judgment required is insufficient to justify the more senior
classification sought. Simply stated, neither grievor
participates in the development of management plans, has no
responsibility for the preparation of work plans or annual budget
estimates and controls, and no administrative responsibility for
a formal unit of organization.
However, as the Employer acknowledged, there was a
violation of the Collective Agreement in terms of acting pay
provisions when the grievor Rick Avery performed special
assignments in the gypsy moth program in the years 1986, 1987 and
1988. Clearly, he should have been paid at the higher 1eve] of
Resource Technician Senior 1 and the Emp]oyer has indicated its
willingness to do so. The evidence satisfies us that Avery
voluntarily accepted substantial overtime payments during the
period of special assignment rather than receive the higher
classification rate of pay with no overtime entitlement. If, in
the unlikely event, that Avery suffered any financial toss
during the special assignment, he should be compensated
accordingly. However, the grievor Avery has not participated in
the gypsy moth'~' program either provincially or on a district
wide basis since the spring of 1988. Clearly, the program is a
special assignment of a temporary nature. Any such assignment
does not of itself justify a permanent reclassification.
The Board is satisfied that the usage argument does not
advance the grievors' cause. On the evidence of Frank Taylor, we.
do not find a substantial similarity between his duties in the
Tweed-Napanee District and those of the grievors. Simply stated,
unlike Mr. Taylor, the grievors have no budgetary responsibility,
no administrative responsibility and no supervisory duties.
Further, it cannot be said that the grievors 8roderick and Avery
directly assist a management forester.
In particular, Rick Avery is recognized by his
supervisor Dave Pridham as a competent and knowledgeable
employee. However, competence and knowledge are no grounds to
justify the higher classification.
For the above reasons, these grievances are dismissed.
DATED at Brantford, Ontario this 119{~.h:~. day of Febru6r~y,
I,~FREEDMAN ' - I /Member'
D. MONTROSE - Member~