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HomeMy WebLinkAbout1989-1797.Marshall et al.90-11-22 ONTARIO EMPL OYF:"S DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE 2'100 TELEPHONE/T~'L~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSO 17_8 - BUREAU 2100 (416) 598-0688 1797/89  1.799/89 In the Matter of an Arbitration Under The Crown Employees Bargaining Act Before The Grievance Settlement Board Between: OPSEU (Marshall et al) Grievor -and- The Crown in Right of Ontario (Ministry of Natural Resources) Employer Before: B~ Keller~ Vice-Chairperson G. Ma3 esky Member J. Campbell Member'~' " For the Grievor~ P. Chapman Counsel Ryder, Whitaker, Wright and Chapman Barrister and Solicitors For the EmploYer: I. Werker Counsel Fraser and Beatty Barristers and Solicitors June 15, 1990 September 25, 1990 September 26, 1990 - Z 1797/89 1799/89 0204/90 DECISION The grievors allege that they are improperly classified. Ail three seek a Berry-type award in that they suggest that there are no existing class standards that properly reflect the nature of their duties. Two of the grievors, MarshalI and Heney seek retroactivity to March 1, 1989. The third, Emode, is satisfied that the normal 20 day rule prior to the date of the grievance should apply in his case. The following position specification was acknowledged by the grievors to be accurate: Z.Purpose of position(why does this position exist?) To ensure the quality of all forms of geodetic data produced in Ontario that is proposed to be loaded in Provincial geodetic database, through extensive mathematical analysis and quality control procedures, that is managed and disseminated to the surveying, mapping, and engineering communities; to provide advice to these same communities on these and other broad ranging geodetic issues. ~iDUties and tel&re4 tasks(what is employee required to do, how and why? Indicate percentage of time spent on each duty) PROJECT ANALYSIS 1. PREPARES and advises junior staff on the preparation of technical reports on the accuracy and quality of control surveys and accepts or rejects returns of control surveys performed by private and public agencies by: -analysing control survey digital data using sophisticated micro- and mini-computer based geodetic software such as MANOR, MANORV, GEOLAB, GHOST, MACSPLOT, COSINE, STRAIN, SAS, SYSTAT and others;' -assessin~ returns to ensure that Ministry standards and specifications have been adhered to; -interpreting the results of various digital data analysis outputs to 'isolate discrepancies in geodetic data, resolving or recommending procedures to resolve those discrepancies or inconsistencies. DATA BASE MANAGEMENT (20%) 2. MANAGES the digital provincial control survey databases, including COSINE (Coordinate Survey Information Exchange), by: -ensuring the security and integrity of all data elements stored in database; -uDdatin~ database by integrating approved digital control data; -modifying database system definitions when required; -Droposin~ modifications or enhancements to data structures and data flows in database; -debugginq database modifications; -developing protocols (procedures and standards) for external agency/private user online access to control survey databases; -~aintaininq and controllinq the accounts, protocol, restrictions, etc. of external agency/private user online access to control survey databases; -training staff in the.use of digital geodetic databases for the dissemination of geodetic data. TEC~NOLOG~ TRANSFER (25%) 3. TRANSFERS geodetic technology and technical expertise to Ministry staff and to the Ontario private and public sector surveying, mapping and engineering communities by: -recommendinq modifications to control network geometric designs, measurement procedures and measurement instrumentation to ensure that specified accuracies for control networks can be achieved; -providing 'technical geodetic data, p~blished information and technical advice to Ministry staff and the surveying and mapping community on demand; -interpretinq and explaining geodetic concepts, techniques, standards and specifications to Ministry staff and clients; -coordinating the collection and.conversion .into digital form of control survey data generated by Ontario's. control establishing agencies and incorporating the data into the Ministry's geodetic databases, including COSINE. RESEARCH AND DEVELOPMENT (15%) 4. PARTICIPATES in geodetic research and development with respect to digital geodetic data analysis procedures and control survey observation procedures by: -reviewinq existing standards, specifications and procedures for performing horizontal, vertical and three-dimensional control surveys and recommending those relevant to the Ministry; -iRterpretiDq the deficiencies of analyzed - D - control surveys and recommending new procedures to alleviate these deficiencies; -recommendin~ new or revising existing digital geodetic data analysis techniques of particular relevance to Ontario's geodetic data management system; -testing new geodetic data analysis methods and assessing their usefulness to Ontario's geodetic data management system; -recommending techniques for micro- and 'mini- computer based processing very large geodetic datasets; -recommendin~ methods of preparing, manipulating, analyzing and adjusting very large digital files of provincial control survey dat~ for participation in continental or regional readjustments such as NAS3 and NAVD88; -developing micro- and mini-computer based software routines for reformatting digital geodetic data to interface with various geodetic software, packages and to perform standard geodetic computations. OTHER (5%~ 5. Performs other related duties as assigned. 4.Skills and knowledge required to perform job at full working level. (Indicate mandatory credentials or licences, if applicable) Thorough knowledge of geodetic and control survey procedures, standards, specifications and geodetic computations, including network design, adjustment, and error, analysis, and modern geodetic positioning technigues, in depth knowledge of the use of computer based geodetic analysis software packages on various computer platforms, such as micro-, mini- and mainframe based; geodetic data management and field experience on control survey projects. Working knowledge of various computer platforms, for example micro-, mini- and mainframe based, as well as computer programming. Good communication skills, both written and verbal to convey advice, instructions to staff, clients and contractors and to make presentations to managers and others. The applicable class standard is Technician 3, Legal Survey: CLASS STANDARD: TECH~.!CIAN ~ , LEGAI~ SURVEY CLASS DEFINITION: This class covers the positions of regional field supervisors who direct the work of three or more legal survey parties under the direction of a party chief, Ontario Land Surveyors or under contract to the Department. Employees in this class work under general instruction with considerable latitude in the exercise of independent judgment in making decisions on problems and procedures. Typical duties include reviewing survey assignments before allotment to ensure that all recorded documentary evidence and pre-survey information has been included; assigning work to Party Chiefs according to location and priority of work; making field inspections on a regular basis to check work progress and to assure conformity with good survey practice; analysing and resolving complex survey problems; checking and approving of field'returns and assuming responsibility for their conformity to relevant Provincial Statutes and Departmental specifications; conferring occasionally with drafting staff to solve controversial survey problems in connection with plan preparation; reporting periodically on work progress and field personnel; checking transportation and accommodation obtained by field parties and approving expense accounts accordingly; training staff on technical and administrative aspects of work. Some employees in a staff relationship perform specialized work pertaining to the programming of- legal land surveys and to the preparation of documents for the registration of survey plans. QUALIF%CATIONS: 1. Grade 12 or an equivalent combination of education and experience. 2. Five years' 'experience as a Technician 1, Legal Survey OR ten years' experience in work related to the duties. 3. Demonstrated administrative and supervisory ability; facility of oral and written expression; good judgment. May 1965 Title Chan~e - July 1, 1970 The issue with regard to the substantive issue in the instant case is a narrow one. The employer admitted that the grievors did not do legal survey work. They Submitted, however, that there were enough similarities between the core functions of their duties and those of legal surveyors such that the existing class standard is an adequate fit. The Board heard the testimony of one of the grievors, Mr. Eugene Marshall. Mr. Marshall has been a Control Survey Data Analyst 'for four years. In 1979 he received an Honours degree in physical geography. He has a certificate in computer sciences and has been a member of the Association of Ontario Land Surveyors in Geodesy (O.L.S.) since 1989. That membership precludes him from doing many of ~he legal surveying functions required in the class standard. Mr. Marshall was a candid and forthright witness. His testimony regarding his job and the differences between it and legal surveying was not strenuously challenged by the employer. The essence of his evidence was to demonstrate that there is a fundamental difference between the functions performed by him and his colleagues and legal surveyors. He also indicated that the function is relatively new for the Ontario Government (about 1980) and pointed out that the class standard which has been in effect since May 1965, does not even contemplate the types of duties he performs. Finally, he testified that the qualifications required of him in the position specification greatly exceed the qualifications required of a Technician 3, Legal Survey. The' jurisprudence of the Board is replete with statements outlining the test' used to determine whether a class standard is appropriate or not. Essentially they state that the core of the definition of the classification must apply to a job. What that has been interpreted to mean is that the Board must satisfy itself that the functions which are an integral part of the class standard - what makes that class Standard-unique and distinguishes it from other class standards - are performed by the grievors. In the instant case it is clear that they are not. The core functions of the grievor's job bears no relationship to the legal surveyor class standard. In fact, to the extent that the O.L.S. held by the grievors precludes them from doing legal survey work, and given that the core function in the class standard requires the performance of legal surveying, it is difficult to see how the class standard applying to a legal surveyor could also apply to the grievors. Following the hearing the Board, in an oral decision, granted the grievances. It gave the employer until December 15, 1990 to properly classify the grievors positions either in an existing classification or by creating a new one. Our decision was reserved regarding the issue of retroactivity. On November 9, 1989, the grievors Marshall and Heney wrote to their acting manager outlining the history of their attempts at getting their position reclassified. 1989 11 09 MEMORANDUM TO: J. Morgan Goadsby A/Manager Geodetic Services Surveys, Mapping and Remote Sensing Branch ~e: Control Survey Data Analyst Re-~lassification On March 1st, 1989 Peter Heney and myself approached Kevin Kelly,.regarding the large discrepancies in the salaries between ourselves and other sections, specifically GIS. We wanted to avoid a grievance and stated that our jobs involved a greater degree of Knowledge, Judgement, Accountability, Responsibility, and Contacts than positions which have been advertised in GIS at the Systems Officer 3 level. Kevin agreed to this and stated that he did not see any problem in getting our position upgraded to at least the S03 level. On March 3rd 1989, Kevin spoke to Peter and myself in his office and stated that he had spoken to Barney P~nting and George Zarzycki and that they had agreed that this position should be at least at the SO3 level or higher and the Tech 3 Legal Surveys classification did not reflect the duties being performed. This position was rewritten and.sent to personnel for evaluation. You indicated on November 7, 1989, that personnel returned this position for the second time at a salary below the S03 level. ~.. When questioned the response we keep getting is that personnel has still not rated this position. This is impossible as p~rscnnel uses the class standards to rate positions and therefore determine the salary. Due to this lack of communication we have acquired job specifications for positions similar in nature to our own and the salary levels for these positions are $55,000+ per annum. Peter and myself have recently acquired O.L.S.'s (Geodetic); (Peter just has to be sworn in); and we feel that our classification should be a PM-18 level. This is not out of line with the current salary levels within the Branch for a position with our responsibilities. We wish t~ discuss this matter AsAP as we would prefer to avoid having to file a grievance as discussed in March. If this cannot be resolved then we will be filing a grievance within a week. We feel that we have been more than reasonable and patient in waiting for a response to this request (since March 1989). Yours Truly, Eugene P. Marshall Peter J. Heney Control Survey Data Control Survey Data Analyst Analyst Geodetic Services Geodetic Services (Emphasis Added) In addition to the above, Mr. Marshall testified that he had been told in June that personnel had agreed to a salary increase, but not the one sought by him, Mr. Heney, or their supervisors. It was therefore sent back for re-evaluation'by.his supervisor. It is usual that retroactivity be awarded only 20 days prior to the filing of a grievance. However, in exceptional circumstances that limit may be extended. The issue has been discussed, in among other discusions, Boyle 675/85; Robbs et al 462/86; Smith 237/81; Corman 13/82; Kelinky et al 1098/86; Baldwin 539/84; Hooper 47/77; Robbs and Allen 462/86; Gamj1209/85; Salo 777/86. In order for those circumstances to apply the following tests must be met: 1) The grievors must have, at some time prior to their formal grievance raised the issue with a responsible member of management; 2) There must be at least a tacit understanding that the purpose of raising the issue is to avoid the need for a formal grievance; 3) A management representative must have become actively involved in the employee,s claim; 4) There must be continued'understanding by the employee that the matter is still being pursued and has not been irrevoca- bly denied. In the instant case, all four of the tests have been met. The memorandum of November 9 indicates that the matter had been raised with the grievors Director and General Manager, both of whom agreed with the position of the grievors and agreed to pursue the matter on their behalf. It was further understood in March 1989 that the avenue chosen by the grievors was one that would hopefully obviate the need for a formal grievance. At no time prior to November 7, 1989 were the grievors told that this request was denied. They continued to get assurances from management that the matter was being continuously pursued on their behalf. Under the circumstances we are satisfied that the grievors Marshall and Heney are entitled to retroactivity to March 1, 1989. We remain seized in the event that there is any difficulty with the implementation of this decision. Nepean this 22nd day of N~emberAtg,90'~'98° M. Brian Keller, Vice-Chairperson G. Majesky, :. Member J. Campbell, Member