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HomeMy WebLinkAbout1989-1474.Karlovich.90-12-07,,~ ONTARIO EMPLOYES DE CA COURONN£ CROWN EMPLOYEE$ DE L 'ON TAR/O GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8 - SUITE 2100 TELEPHONE/T£L~-PHONE 180, RUE DUNDA~ OUEST, TORONTO. (ONTARIO) MSG tZ8 - BUREAU2100 (416) 598-0688 1474/89 In the Matter of an Arbitration Under The Crown Employees Bargaining ~ct Before The Grievance Settlement Board Between= OPSEU (Karlovich) Grievor -and- The Crown in Right of Ontario (Ministry of Housing) Employer Before: B. Keller Vice-Chairperson J.J. Carruthers Member A. S. Merritt Member For the Grievor: P. Lukasiewicz Counsel Gowling, Strathy and Henderson Barristers and Solicitors For the Employer: C. Osborne Counsel Fraser and Beatty Barristers and Solicitors Hearings~ April 2,'1990 April 6, 1990 JUne 4, 1990 DECISION The grievor, a Site Services Coordinator in the Technical Support Services Branch of the Ontario Housing Corporation, claims that the proper classification for his position should be Community Planner 4. The argument advanced on behalf of the grievor is a "usage" one. That is, that a comparison of his duties with either those of Mr. Peter Foley or Mr. Stewart McElroy, both Community Planner 4s, justifies reclassification of his position to the same level. The grievor works under the supervision of Mr. McElroy. He is the responsible landscape architect for six local Housing Authorities (L.H.A.), in the Ministries' Central Region. He has no responsibility for new construction Work. His duties involve upgrading and maintenance of L.H.A. facilities. The grievor does no work with Non-profit Housing Corporation (N.P.H.). The position specification of the grievor was filed as an exhibit during the hearing. To a substantial degree, it describes the function performed by him - Duties and related'tasks: Provides investigative, consultative and technical assistance for all drainage, water supply, hard surfaces, storm and sanitary services, for local housing authorities by: 85% - providing consultative services on general landscape architectural, horti- cultural, site improvement and preventa- tive maintenance programs; - performing on site investigations of work required, recommending to housing manager, site improvement items to be included in budgetary forecasts; - determining extent of work required, preparing preliminary concept plans and preliminary budget estimate for housing manager; - assisting in the hiring of land survery- ors, landscape architects; - reviewing and approving concept, prelim- inary and final drawings and specifica- tions prepared by consultants; - surveying of sites, plotting and draft- ing topographic drawings, designing and drafting site development plans, calcu- lating a construction estimate and preparing scopes of work to the final tender stage; - assisting local housing authorities with their in-house tenders, with advice, drawings and specifications; - issuing addenda to tenderers to clarify requirements~ - evaluating tenders received and recom- mending award; - conducting 'site Linspections to ensure compliance with tender documents; - attending site meetings, resolve on-site problems; reviewing required field changes, calculating quantities, issuing change orders; 2. Assists L.H.A. staff in financial aspects of work by: 15% - examining and approving consultants' claims for payment; - examining and approving contractors' progress payments, start of warranty and release of holdback; - arranging joint inspections with C.M.H.C. Branch offices, upon request, to obtain approval of budget funds for modernization and improvement work on Federal\Provincial projects. Skills and Knowledge Sound knowledge of the theories, policies and practices of landscape design and site main- tenance, construction methods and materials supplemented by significant related experi- ence. Experience in contract administration of large landscape site improvement contracts and in field supervisor; site servicing, plant growth. Good knowledge of quantity surveying and unit pricing; ability to prepare complete scopes of work, including 4esign, drafting and specification; good analytical and co- ordinating skills; ability to maintain effec- tive working relationships; tact; diplomacy; good verbal and consultative skills; a valid driver's license. A~ility to carry out both boundary and topo- graphical surveys. Reason for Classification Position performs site investigations, pre- pares designs and specifications and super- vises completion of a variety of functions related to landscaping services. Position estimates the cost of Work required, inspects work in progress and approves pay- ments; also reviews and recommends on hiring and performance of private consultants. Position is atypical due to'difference in skill base required of standard, (unreadable), diversity and complexity of duties is considered equivalent.. As indicated above, Mr. McElroy is the grievor's superior - like the grievor, he had responsibility for 6 L.H.A. In relation to those L.H.A.s he performs essentially the same duties as the grievor. In addition, he is responsible for N.P.H. new construction in his region. The N.P.H. duties only took up about 10% of his duties when he started but, once he became familiar with his job, rose to approximately 40%. His job specification, also filed as an exhibit, is a reasonably accurate reflection of his duties. Duties and Related Tasks Provides landscape architectural design and site devel~opment services by: 25% - performing and\or participating in feasibility studies including the provi- sion of alternative concepts in site development to ensure optimum utiliza- tion of site features and the on-site evaluation of existing components (e.g. vegetation, topography, drainage pat-~ tern); - reporting study results to appropriate senior staff; - designing and preparing site development plans and specifications to the final stage making ready for tender including such items as storm and sanitary sewers, surface drainage, parking areas, walk- ways, recreation facilities, fencing, exterior lighting, retaining walls, plants, trees, sodding, etc; - consulting with municipal officials, housing agency senior staff, tenants, etc., regarding specific requirements and obtaining necessary approvals; - recommending and participating in hiring of landscape architectural consultants and land surveyors and monitoring their performance. 2. Recommends to Managers, Technical Services either the approval for construction, ap- proval with conditions or non-approval of construction drawings and specifications by: 35% - reviewing preliminary design drawings and specifications submitted by outside landscape consultants for OHC projects. - reviewing design drawings and specifica- tions at various stages for program requirements (e.g. O.B.C., N.B.C., Residential Standards and C.M.H.C. site planning criteria, etc.) for residential projects developed by sponsors under Ministry of Housing programs such as M.N.P., P.N.P., and co-operative housing corporations. 3. Carries out on-site inspections of work in progress to ensure compliance wits approved plans and specifications by: 20% - attending site meetings to discuss project details with contractors' repre- sentatives, local housing authority staff, sub-contractors, etc; - resolving on-site problems with contrac- tor, tenants, adjacent property owners, contract administrators, municipal officials (e.g. drainage problems, etc); - reviewf~"~change~ to scope of work, advising on quantities and unit prices for revisions and recommending approval\non approval. 4. Provides advisory landscape architectural and site development services by: 10% - reviewing maintenance portion of budgets of various agencies making recommenda- tions on viability and priority. - participating in management reviews of Housing Authorities by making comments on effectiveness of preventative mainte- nance programs and condition of projects. - assisting various housing agencies on request with regards to site and land- scape architecture related problems. - participating in housing agencies board and\or tenant meetings and making audio visual presentations as required. - reviewing OHC conservation specifications and providing feedback. - arranging and~or offering landscape and- site improvement related technical ~ seminar and workshops to various housing agencies. 5. Supervises one site service coordinator. 10% Skills and Knowledge Sound knowledge of the theories, principles and practices of landscape architecture and design applicable to site uDgrading for residential projects. Experience in the preparation of designs and scopes of work, co-ordination of field work and contract administration normally acquired through a degree in Landscape Architecture and extensive practical experience with a registered landscape architect, site contractor or design firm. Membership in Ontario Association of Landscape Architects. Excellent communication, interpersonal and consultative skills, ability to maintain effectiue working relationship with colleagues, consultants and contractors. Valid drivers license. ~ Mr. McElroy and the grievor have a close working relationship. They discuss problems and suggest solutions to one another. Each has a particular area of expertise but have many common skills. It was Mr. McElroy who assigned the grievor the LHAs for which he is responsible. The responsibility for any errors of the grievor is with Mr. McElroy. Mr. Foley is employed in Southern Region. He is responsible for the LNAs as well as NPHs in the Region. As such, he does both new construction with the NPHs as well as up-grading and mainte- nance with the L.H.A. His duties as well as time allocation closely resemble that of Mr. McElroy. No landscape Architects report to him. The Board has on numerous occasions discussed the test for a usage agreement to be successful. In Re Crockford et al and Ministrv of Community and Social Services (1985) G.S.B. #548\83 (Roberts) the Board described the applicable legal principles as follows: The legal princiPles which are applicable to classification cases based upon so-called "class usage" are. well established, and need not be re-stated at length in this award. It suffices to say .that a grievor who' demonstrates that he or she is doing substantially the same work as an employee in a higher classification is entitled to succeed upon a claim for that classification. At the hearing, counsel for the Ministry submitted that the standard of review ought to be stricter, i.e., that the grievor ought to be put to the burden of showing that his or her job was identical to that of another employee in a higher classification. This position, however, does not seem to coincide with the prior jurisprudence of the Board. In the prior award of this Chairman dealing with the Brecht case, supra, it was concluded that the grievors should succeed on a showing that they were "performing essentially the same duties" as those in the more senior classification of S.o.J. 2. Id. at p.6. In Re .Aikins and Ministry of Health (1983) G.S.B. #603\81 (Draper), the Board stated, "whatever the term used by the Board in earlier classification cases, 'substantially parallel', 'substantially similar', 'virtually identical' or 'virtually the same', what is to be determined is whether or not the work being performed by a grievor is the same in its distinctive and essential elements as that being Derformed~ by employees in the classification sought." Id at p.u. (Emphasis supplied). Clearly, this test can be met without showing that the jobs in question are identical. In Re Keeling and Liquor Control Board (1990) G.S~B. # 1077\88 (Watters), the Board quotes, with approval, the text described in McCourt 198\78 (Saltman): When the Union rests its case on a comparison with the duties of another job, it needs to show that the Employer has modified its written standards. Although every duty between the two jobs need not be identical (nor could they ever be completely identical), the duties of the two jobs must be virtually the same .... "(emphasis added) It then goes on to state that with reference to the matter in front of it, "...it is the judgement of this Board that the core function of the two (2) jobs in question are neither substantially similar nor virtually identical''. In the end, what it comes down to is that the Board has to be satisfied not about the value of the job, but about its substance. If it is shown that the essential elements of the job being compared are the same the usage arguments succeeds; if they are different it must fail. In the instant case, the Board is asked to compare the grievor's job with two others. The first is that of Mr. McElroy. In our view, the position of the grievor's '.!can't succeed if for no other reason then that Mr. McElroy is the grievor's supervisor. He assigns the work and is responsible for his output. The fact that they share many skills and talk with each other about their work is a reflection of work habits and a management style. It does not mean that both ,do the same work. so as .to fit within the criteria outlined above. A review of the work of Mr. Foley'shows, again, that he and the griever utilize many similar skills and, in relation to LHA work exercise essentially the same functions.~ However, the core responsibilities of the griever are in relation to L.H.A.s only. Mr. Foley spends at least 40% of his time on work unrelated to LHAs and, in particular, related to N.P.H. Thus, rather then there being substantial similarity between the two jobs there are significant differences. As was the case with Mr. McElroy, the criteria required for a successful usage test have not been met. The grievance is denied Dated at Nepean, ontario this ?th day of~ecember:_ 1990. M. Brian Keller, Chairperson A. Merrit, . · " Member