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HomeMy WebLinkAbout1989-0059.Hartung & Wolf.90-02-28 ONTARIO EMPLOY~-S DE I.,4 COURONNE CROWN EMPLOYEES DE L'ONTA RIO 1 GRIEVANCE C,OMMiSSlON 'DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE 2100 TELEPHONE/T~:L~PHONE 180. RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z$ - BUREAU 2100 (416) 598-0~88 File # 59/89 IN THE MATTER OF AN ARBITRATION- - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEHENT BOARD Betwee2: OPSEU (Hartung/Wolf) Grievor - and - The Crown in Right of Ontario (Ministry of Government Services) Employer Before: E.K. Slone Vice-Chairperson I. Thomson Member E. Orsini Member For the Grievor: Nelson Roland Counsel Cornish & Associates Barristers and Solicitors For the Employer: Nancy Eber Counsel Hicks Morley Hamilton Stewart Storie Barristers and Solicitors Hearings: July 19, 1989, January 24, 1990 AWARD When this matter first came before us on July 19, 1989, the two grievors were classified as Designer 1, and sought reclassification either as Specification Officer 2, or some other more appropriate classification. As the employer was planning to do an audit of a number of jobs including those of the grievors, we agreed to adjourn the. hearing pending such review. Some months later, the employer changed the grievors' classification to Specification Officer 1. The grievors contend that the employer did not go quite far enough. They argue that they should be Specification Officer 2's. The Board accordingly proceeded to hear the grievance of Mr. Hartung. The parties have agreed that since Mr. Wolf performs substantially the same job as Mr. Hartung, the decision will apply to Mr. Wolf as well. THE EVIDENCE Mr. Hartung (who we will refer to as "the grievor") is one of two Contracts Technicians (Wolf being the other) employed at the Guelph Distr~ct Office of the Ministry. His job is aptly described, as both parties concede, in the Position Specification marked as Exhibit §, and which is reproduced in full as Appendix A to this award. In the "Purpose of Position" section, the job is explained thus: "To prepare architectural and engineering specifications and final contract documents for tender in construction, mechanical, electrical, and architectural projects for renovations, alterations, repairs, new construction projects and site work and also to prepare specifications for tender in respect of variety of service contracts in the Operational Maintenance Program." In'the Skills and Knowledge section, the person performing the job is required to have: "Thorough knowledge of and demonstrated experience in architectural, structural, mechanical, electrical design, specifications and contract law, usually gained through studies in architectural technology or certification as MAATO or related field with several years related experience. Thorough knowledge of construction methods, materials, building and industry practices, building science, codes, standards, research. Good oral and written communication skills to interact with clients and technical specialists and district staff," The grievor is an accredited Architectural Technologist, and has been in the position for some five years (four at the time the grievance was launched.) He belongs to other professional organizations which assist him in keeping abreast of technological advancements in his field. The two Contracts Technicians report directly to a Technical Services Supervisor. The grievor testified that upon receiving a project, which was referred to as a "scope of work", he then works on it alone until the stage where a draft specification has 4 been typed and will be reviewed by the supervisor andJor the project manager or inspector before being sent out as part of a package of tender documents. The grievor derives his specification from a number of sources. He has "Master Specifications" promulgated by the Toronto office, which he may adapt as required. He can refer to previous projects and use them as precedents. He may do some outside research, such as by speaking to manufacturers or referring to their published literature and obtaining technical information about a particular product available in the market. He may simply rely on his own knowledge, or may consult the inspector responsible for the project. Rarely - and this is significant - will he go to his supervisor for assistance. According to the grievor, there is a limit on the monetary value of projects undertaken by his district office. That limit is $400,000, although often larger projects are broken down into a n~mber of components, each of which is under $400,000, in order technically to satisfy the policy. According to the grievor, on some of the smaller projects he is entitled to use a "short-form" specification, which is a much simpler version of the "long-form" specification otherwise used. He could not estimate the percentage of projects for which he uses the short form. It was also his evidence that there is not necessarily a correlation between the dollar value of a project 5 and its complexity. For instance, a renovation'project may have few dollars allocated to it but it may be far more complex, involving many types of materials and trades, than a more expensive new construction project. The emplayer called as a witness Robert Briggs, who is currently a Senior Advisor, Specifications, in the Design Services Branch in Toronto, At the time of the grievance he was the head of the specifications group in the same branch, and as such was responsible for supervising that branch's Specificat£on Officer 2's. The employer explained that the purpose of this evidence was to show what work those Specification Officer 2's dldo The union objected to thls evidence on the ground that it was irrelevant, and amounts to a "reverse usage" type of evidence, where the employer .is seeking to put forward evidence of how it classifies one group of employees, in order to justify the classification afforded to another group. This, the union argues, begs the question of whether the group put forward is itself correctly classified. Since the employer alone allocates classifications, it is entirely self-serving to attempt to put forward evidence of how it has classified one group as somehow justifying the classification of the grievor. At the time we ruled that we would hear the evidence of Mr. Briggs, and treat the objection as a matter going to the weight, if any, to be affo'rded to the evidence. 6 There were a few things that we were able to learn from Mr. Briggs that are of some help, although not necessarily to the employer. The Specification Officers in Toronto restrict their efforts to the architectural and civil engineering areas, leaving the electrical and mechanical work to consultants. Part of their function is to develop the Master Specifications to which specification writers such as the grievor refer. The Toronto office handles some very large and complex projects, involving values up to about $4 million, but the normal range of values is $200 - 300,000. This latter value is within the competence of the Guelph office. What we did not learn from Mr. Briggs or anyone else, was whether other branch offices have the Same limitation, and what factors determine whether such a project will be handled out of Toronto or a branc~ office such as Guelph. Mr. Briggs agreed that dollar value does not necessarily~ although it might, correlate with complexity. He testified that the work done by the Specification Officer 2's in .Toronto included a mix of moderately complex, complex, and very complex tasks. Re also testified that the short-form specification is never used in the Toronto office, 7 THE CLASS STANDARDS The Class Standards for the Specification Officer Series includes three levels. Those standards are as follows: "CLASS STANDABD: SPECIFICATION OFFIqER I This is an entry or junior working level, covering positions where the employees prepare architectural and engineering specifications for tendering purposes. Employees in positions in this class produce specifications for moderately complex, small to medium sized projects and assist in the production of large and complex projects under more direct guidance by senior office~s. They also assist more senior Specification Officers in monitoring the work of associate architects and engineers; in providing information systems to facilitate the production of specifications by others and in research studies. They perform related duties as regui~ed. SKILLS AND KNOWLEDGE: A good knowledge of architecture, engineering, material costs and general estimating. Good knowledge of construction law and a sound knowledge of tendering and specifications. Ability to analyze contract systems and documents, prepare and co-ordinate specifications; communicate and coopemate with professional and technical staff. SPECIFICATION OFFICEB 2 This is the full working level, covering positions of employees who perform all the functions of the Specification Officem 1 level, except that the projects involved are- predominately large and complex. They receive technical direction and guidance from supervising officers and may provide advice and guidance to junior officers. 8 SKILLS AND KNOWLEDGE: A good knowledge of architecture, engineering, material costs and general estimating. Good knowledge of construction law and a sound knowledge of tendering and specifications. Ability to analyze contract systems and documents, prepare and co-ordinate specifications; communicate and cooperate with professional and technical staff. SPECIFICATION OFFICER $ Characteristics of positions in this class is the provision of technical supervision to less senior Specification Officers, in the writing of specifications, monitoring the work'of architects and engineers and in research projects which may be policy oriented, materials and systems or'statistical in nature. They also provide instruction and training for lower level officers and check their work. In addition, these employees may produce specifications for the largest and most complex projects, including the hiring and supervision of professional consultants in specialized areas. The very nature of positions qualifying for this class limits the number of positions/incumbents. These employees work with considerable independence. SKILLS AND KNOWLEDGE: A good knowledge of architecture, engineering, material costs and general estimating. Good knowledge of construction law and a sound knowledge of tendering and specifications. Ability to analyze contract systems and documents, prepare and co-ordinate~specifications; direct support staff; communicate and cooperate with professional and technical staff." As can be seen, the differences between the levels are not great. The skills and knowledge required at levels 1 and 2 are identical, and the only difference at level 3 is the added ability to direct support staff. As between levels 1 and 2, the 9 real differences between the positions are: 1. The Specification Officer 1 is an "entry or junior working level" position, while the Specification Officer 2 is a "full working level" job. 2. The Specification Officer 1 produces specifications for "moderately complex, small to medium sized projects", while the Specification Officer 2 works on "predominately large and complex" projects. 3. The Specification Officer 1 works on more complex projects under direct supervision of more senior officers, while the Specification Officer 2 may receive guidance from above but also give guidance to more junior officers. THE LAW A grievance alleging improper classification may succeed in one of two ways: either by measurement of the grievor's job against the wording of the applicable Class Standards (the standards approach), or on proof that notwithstanding the wording of the Class Standards, other employees performing equivalent duties are classified in a higher classification (the usage approach): See Ontario Public Service Employees Union v. Th~ Queen in Right of ~ntario et al (1982) 40 O.R. 2d 142 (Div. Ct.I 10 at p.145. See also Goobie, GSB #240/84 (Verity). It is the standards approach which we are asked to apply in this case. Our task is to decide which of these two classifications is more appropriate for the grievor, bearing in mind that the onus is on the grievor to show that he has been wrongly classified. DISPOSITION It is our view that the grievor's job forms a much better, although not perfect fit, into the classification of Specification Officer 2. Our reasoning is as follows: "Entry, :~unior level" vs. "Full working level"' It is difficult to see how the grievor's job can be said to be either "entry" level or "junior". The concept of an entry level position implies a hierarchy within which one might progress, whether at a rapid or a slow pace. We do not attach any significance to the fact that the grievor had been in the position for four years; one can remain at an entry level forever. But on the available evidence, the grievor performs all of the work done by specification writers in his office. There is no one in a higher classification doing the more complex work, to which position the grievor might aspire or progress, The grievor is operating at, or at least much closer to, the full working level. Smaller and less commlex vs. Lar~er. more commlex projects As we noted during the hearing, both size and complpxity are entirely relative concepts. Our ability to assess these factors is severely limited by the scant evidence on these points. What is clear is that within the Guelph office itself, there is no limitation on the size or complexity of projects that the grievor is qualified to undertake. In attempting to compare the grievor's job to that done by specification writers in Toronto, as testified to by Mr. Briggs, we run up against several difficulties. First of all, it is not clear how many of the projects undertaken in Toronto are more complex or larger than those done in Guelph, although we can infer that some of them are. We must also bear in mind that the grievor handles not only the architectural and civil aspects of the specifications, but must draw on a broader base of expertise including also the electrical and mechanical aspects of a construction project. How do we measure the complexity of the architectural and civil aspects only of a hypothetically-larger job, as against the entire spectrum of architectural, civil, electrical and mechanical aspects of a hypothetically-smaller job? And lastly, is it not at least possible that the Specification Officer 2's in Toronto are themselves wrongly classified? On the little evidence available we must conclude that with respect to this criterion, the grievor can fit equally well into either 12 classification. Workin~ under supervision or assistin~ more senior officers vs. both receivin~ and ~iv%n~ ~uidance It is clear that in the grievor's position, there is no senior officer from whom he might obtain direction, or whom he might assist on a larger project. He works quite independently. Nor, for that matter, is there any junior officer whom the ~ grievor might supervise. Neither of these two hierarchical structures adequately describes the grievor's job. However, on balance, we are of the view that the single most important factor is the lack of supervision or direction from senior officers. This overlaps with the concept of a "junior". Were there any senior officers in the grievor's workplace with whom a junior- senior or mentorship relationship existed, the lower classification might be satisfied. However, on the evidence we are. persuaded that the more appropriate level is that described in the standard for Specification Officer 2, because the grievor is called upon to exercise a greater degree of responsibility and independence of judgment than that described in the lower standard. CONCLUSION In deciding this case, we are mindful of the fact that the two levels may overlap. Indeed, in this series the two levels are more close together than is often seen. In such a case, though, we must look to the essence of the jobs and exercise our judgment as to which classification as written creates the more nnm~..~..hl, fit. In +.h~...o., we find that the griev~ succeeded in demonstrating that at least two of the three factors examined above point to the higher classification, while the third factor could fall either way. We accordingly conclude that on balance the grievor has satisfied the onus of showing that he is wrongly classified as Specification Officer 1, and indeed performs the job described in the Class Standard for Specification Officer 2. Accordingly, the employer is ordered to reclassify the grievor to the higher level. As for other remedies, counsel did not address us on the subject, but we see nothing unusual in this grievance that would cause the Board to depart from the 20-day rule, retroactivity and interest in accordance with the established jurisprudence. If the parties cannot work these matters out, or wish to make any submissions on the matter of remedy, we will remain seised of the matter. Either counsel may make such submissions, if so advised, in written form. 14 In accordance with the agreement of the parties, the same result will apply to the Wolf grievance. Dated at Toronto this 28th day of February,- 1990. Eric K. Slone, Vice-Chairperson Thomson ~ ini, Member ~'~' ~PP;.ND~X ,,a- Position Specification & Class AIIocation.CSC 6150 (Refer to back of form for completion instructions) ]. Po~itiOa t~le ~PO~ljOn CocJe Pos~t~on Idonl~et  Posifio~ Co~e Class lithe and ~u~r~ ~ I ~~ ~ ~ ~inistry Division Ifanc~ ~n~ Sacti~ ~ Location ~Geo~. Loc~ Coda O~tlea ~d re~t~ ~s~ (what ~= .me~ov~ ~u~ m do. how e.~w~y~ I.~ica=a ~r~en~ ol ~ime s~nt ~ ~ach~tv) , - ~~t ~1 a~t{~le~~ f~, ~~~ ~ ~ ~ ~ifi~ ~ f~ ~ ~~ ~ior ~ ~ ~1; ~~; (~'d) Skills I~ kn~l~ r~uJr~ to ~o~ job it full worki~ level. (In~i~te ma~tory cr~e~riets or liceflc~, il aDgli~ble) ~-~ ~ ~~ e~l~ ~ ~fi~ (~'d) Signature imm~ia~e Su~rvit~ Date Ministry Officia~ Data . .'~ ~ ~ / O~y Month Year CI~ss allo~ti~ C~a~ ~tl~ Class C~ O~u~tion~l group ~u~r Effusive date $~cification Officer 1 60100 TS-02 'Position pre.es archite~al ~d engineering s~cifications and final ~ntra~ d~nts for tendering p~ses. ~ioyees p~u~ s~cificationS for ~erately complex, s~ll to aiz~ pro~e~s. ~loy~s c~ordinate s~ifi~tions ~i~ drawings and other dot.ants in pre.ration for tender.