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HomeMy WebLinkAbout1990-0192.Booth.90-11-03 { . .........;... .'t~. , . ':'¡ - ONTARIO EMPLOY!S DE LA COURONNE - " .', - CROWN EMPLOYEES DEL'ONTARIO 1111 GRIEVANCE COMMISSION DE .. i -) SETTLEMENT REGLEMENT , BOARD DES GRIEFS 180 DUND....S STREET WEST, SUITE 2100, TORONTO, ONTARTO, M5G IZ8 TELEPHONEITIÔLIÔPHONE: 141S, 326-1388 lBO, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO!. M5G IZB FACSIMILElTêt.£cOPlE: (416) 326-1396 192/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Booth) Grievor - and - ) The Crown in Right of ontario ! (Ministry of Transportation) Employer BEFORE: w. Low Vice-Chairperson J. Carruthers Member G. Milley Member FOR THE R. Wells GRJEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D. Jarvis EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors ,', HEARING: . .'" Septembr 26, 1990 ) f '; ~-. DECISION '.) This is a· classification grievance. The Grievor, Thomas Booth, has been employed by the Ministry of Transportation since 1961. At the date that he filed his grievance on February 13, 1990, he was classified as Highway General Foreman I, working out of a head office at Kenora, ,Ontario. During stage II of the grievance procedure, Mr. Booth was re-classified as a Technician 1, Construction, effective April 2, 1990. Mr. Booth was not satisfied with this result, and seeks a Berry order. We have not had the benefit of a position statement from the Grievor, but the parties have agreed to proceed with the hearing notwithstanding. We are advised that the dispute is .) limited in nature and in essence is a question of whether Mr. Booth's activities as a supervisor of day labour crews hired by the Ministry to perform certain construction work on the highways is so substantially different from those activities and functions contemplated in the class standard for Technician I,· Construction, that a re-classification by way of a Berry award is appropriate. We are advised that the parties have agreed that the draft position specification which appears at Tab 6 of Exhibit 1, (being the Ministry's document brief) generally describes the Grievor's duties. We are advised that this draft position specification was prepared by the Grievor. At Tab 7 of Exhibit 1 ) r, i", 2 ) is found the class standard for Technician 1, Construction, the . text of which is set out below: TECHNICIAN 1, CONSTRUCTION CLASS DEFINITION: These employees, as proj ect supervisors, direct departmental personnel in inspecting and controlling all phases of a 'highway construction contract of limited size and complexity. They direct the work of one or more field parties in establishing alignment and grades of road projects from contract drawings and taking cross-sections and other original measurem,ents for payment prl0r to the start of work. During construction they direct the setting out of necessary survey work and the measurement of completed work for periodic progress payment. They direct support staff such as inspectors, weighmen and checkers and ensure through them that all work is completed according to contract specifications: all department supplied materials are used or accounted for: all earth and granular materials pass departmental specifications and are properly placed and compacted: and that all asphalt and concrete is mixed with the proper proportions of ') approved aggregates and placed according to approved procedures. They provide liaison with the contractor's representative to resolve problems and they initiate infraction reports as required. These employees evaluate all completed work as a basis for contract bidding pre-qualification. Work is assigned by a Construction Supervisor who provides instructions as to time limitations, priorities and information on any related work being done. QUALIFICATIONS: I. Grade 12 education. 2. At least 5 years' experience in related work, preferably with the Department. 3. Demonstrated supervisory ability; ability to maintain good working relations with contractor's personnel. Factually, there is very little in dispute. The Grievor's evidence and the evidence of Mr. Len Lamoureux on ) · \-~ 1, 3 J behalf of the Ministry was consistent. The evidence was that during the summer season, which is May through November, Mr. Booth is working on highway construction sites. Some highway construction is performed pursuant to general contracts with contractors and other construction' proj ects are performed under the Ministry's day labour program. Examples of projects which are done pursuant to general construction contracts are surface treatment, crushed gravel, minor road construction, guardrail and winter sand. Examples of projects carried out under the day labour program are grading, drainage, granular base, major culverts and scarifying and re-shaping. It was Mr. Lamoureux's evidence that the reason for ) certain projects being carried out under the day labour program- and others being carried out pursuant to general contracts was the availability of equipment; where the Ministry could not be confident as to the supply of equipment and operators to carry out a job, it would opt to have the project carried out pursuant to a general contract, thus eliminating the risk that needed equipment might not be available at the relevant time. In either case, however, Mr. Booth's function was to supervise the progress of the construction project and he had under his direct supervision a number of Ministry employees acting as checkers and weighmen, and performing a number of other functions on the site. In both cases, it is Mr. Booth's function to see to it that the I proper quantity of materials is being used on the project, that ) I I '. ,'. 4 ) the project is being carried out in . accordance with the Ministry's policies, manuals, specifications and standards. The substantial difference between Mr. Booth's functions in a job being performed pursuant to a general contract and his functions in a project being performed under the day labour program is that under the day labour program, the equipment and operators for the equipment are contracted for by the Ministry from a number of different independent contractors, whereas on a job which is being performed pursuant to a general contract, the Ministry has but one contract with the general contractor, which in turn either supplies its own equipment or subcontracts with equipment operators. The difference then is .- the interposition of the general contractor on the one hand, and ) the absence thereof on the other. In both cases, Mr. Booth's, role in the construction project is to see to it that the job is done properly. It was submitted that the function of Mr. Booth in the day labour program is -different from his function as a supervisor of construction contracts being carried out by a general. contractor to the Ministry. In our view, the issue is not whether those two functions are different from each other but whether the totality of the functions and role carried out by Mr. Booth are so substantially different from that contemplated in the class standard that it can be said that his job does not fall within that described by the standard. ) " " " 5 ) The parties have agreed that during the winter months, November to May, Mr. Booth is not occupied in the construction of roads and instead serves as night patrolman or night patrol supervisor when called upon. It is not disputed that this is also a part of his job, and it is not suggested that this winter function removes the job from the class standard. It was the evidence of Mr. Booth on cross-examination and Mr. Lamoureux in direct examination that of the summer season, which is from May 1st to November 1st, or approximately 26 weeks, Mr. Booth spends about 7 weeks on surface treatment construction contracts, approximately 7 weeks on crushed gravel contracts, and from 3 to 6 weeks on winter sand and guardrail ) contracts .- This amounts to between 17 to 23 weeks of the 26 week, summer season. The witnesses agree that this would vary from year to year. Both witnesses, however, said that Mr. Booth's time would be split approximately 50%/50% between day labour programs and work on contract projects. There is an inconsistency between the 50/50 allocation and the particularized breakdown of weeks spent on each type of activity. _ If we are to take the more particular breakdown as being more accurate, then Mr. Booth would be spending only approximately 6 to 9 weeks of the year supervising construction projects under the day labour program. This range would have to be reduced to take into account the 3 to 5 days which Mr. Booth spends at head office after the completion of each 'general contract. If we ) " (j"~ . . 6 ') assume that the allocation of 50/50 is accurate as between supervising contracts and supervisinq projects under the day labour programs, then Mr. Booth would be performing supervision under the day labour program for 13 weeks or one-quarter of the year. In our view, to determine whether Mr. Booth's job falls outside the class standard such as to warrant the making of a Berry order requires us to consider not only the nature of the variance, if any, between what he does and that contemplated in the class standard" but also the amount of time spent on the variant activity or function. ) The nature of the function carried out by Mr. Booth· under the day labour program is not, in our view, substantially at variance with the function which he carries out as a supervisor of construction projects carried out pursuant to a general contract, notwithstanding the lack of interposition of a general contractor in the case of projects carried out under the day labour program. The inference which we draw from hearing Mr. Booth's evidence as to the nature of his activities on both types of project are that he is responsible for seeing to it that' the project is carried out properly. That he interfaces with independent contractors operating pieces of machinery in the case of the day labour program as opposed to interfacing with the general contractor in the general contract of construction ") ~ Q' 7 ) situation does not alter the general nature of his duties, in our view, which is to ensure that the performance of the work crew complies to the Ministry's standards and specifications. Nor are we of the opinion that Mr. Booth's functions in the day labour program are substantially different from those functions contemplated in the class standard for Technician 1, Construction. The class standard does not restrict the activities of the person belonging to that class to quality control functions. It was the evidence of both, witnesses that under the ," day labour program, equipment is supplied by independent ) contractors who also provide the attendant labour, and that the supply is pursuant to a "Form All, or a contract. A construction project carried out under the day labour program therefore is a conglomeration of a number of small and limited construction contracts between the Ministry and those independent contractors providing men and equipment to carry out the project. On this view of the matter, Mr. Booth's activities fall clearly within the class standard. Even in the absence of such an analysis, we are of the view that Mr. Booth's function in the day labour program does not substantially depart from those functions contemplated in the class standard. It is perhaps attractive from the Grievor's point of view to over-emphasize the word "contractu in the class standard and to under-emphasize the ) ~ ~. G; , " . . 8 ) active aspects of the class standard which inhere in supervising, inspecting, controlling, directing, ensuring and evaluating. In our view, the pith and substance of the class standard is in the activity, and the activity carried out by Mr. Booth entails all of the above whether it is a proj ect carried out using men and machinery pursuant to a miscellanea of independent contracts or a project carried out pursuant to one general contract. It may be that the class standard, which is dated May 1965, is somewhat outdated in that it refers to a highway construction "contract" ,as opposed to a highway construction Ifprojectlf. Arguably, it is open to the Board to construe the term "contract" to mean Ifproj ect If , but for the reasons set out ) above, we-do not find it necessary to so construe the term in, coming to our conclusion that there is no substantial variation between Mr. Booth's functions and those contemplated in the class standard of Technician 1, Construction. As arbitrator Roberts wrote in O.P.$.E.U. (Parker) and the Crown In Right of ontario (Ministry of Transportation), G.S.B. #1528/88, the typical duties set out in the class standard are not to be the sole determinants of classification. Consideration is also to be given to whether a class standard is most appropriate to a job in terms of the level of responsibility, complexity' and the qualifications of incumbents. ) . '.¡~\ , 1 . - 9 The jurisprudence as to the test which must be met ,-) before the awarding of a Berry order is appropriate is that there must be a substantial variation in either the nature or scope of the duties performed by the grievor from that set out in the class standard, and no other class standard reasonably describes the fcnctions which carried out by the '. On the are gr~evor. evidence before this Board, we do not find that that test is met, a~d accordingly we are of the view that this grievance ought to be dismissed. DATED at Toronto this 30thday of 'Novembe,r, 1990. ) Vice Chairperson G. MI LLEY, Member ") .