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HomeMy WebLinkAbout1990-1411.Nadavallil.91-11-07 · - n.."_ ~-; " - - ONTARIO EMPLOV!S DE LA COUflONN£ CROWN EMPLOYEES DEL'ON7ARlO 1111 GRIEVANCE CpMMrSSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ISO DUND.....S STREET WEST, SUITE 2100, TORONTO, ONTARIO, M5G IZS TELE~ONEfrELÉPHONE: (4151326- r388 180, RUE DUNDAS OUEST, BI.JA1;A'i.J 2100, TORONTO (ONTARIO!, MSG lZS FACSIMJLE'TËLËCOPIE' {4161326·13~ 1411/90 IN THE MATTBR OF AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT I Before THE GRIEVANCE SETTLEMENT BOARD BE'l'WEQ' OPSEU (Nadavallil) Grievor - and - I ¥ The Crown in Right of ontario I (Ministry of Transportation) Employer ÐEPOP: J. Roberts Vice-Chairperson T. Browes-Bugden Member , I R. Scott Member I I \ l. FOR THE S. Ursel GRIEVQR Counsel Cornish Roland Barristers & SOlicitors FOR TlIE R. stewart EMPLOYER counsel Winkler, Filion , Wakely I Barristers & SOlicitors HEARING. January 22, 1991 April 23, 30, 1991 May 7, 1991 ~---_.__. .,çr;' It . .. AWARD . . I. INTRODUCTION This appears to be another in a series of cases addressing the question of the propriety of the classification FOR persons I I , performing drafting and related duties in the Civil Service. In this case, the grievor is a senior Structural Drafter with the I Ministry of Transportation, Eastern Region in Kingston, Ontario. I He is classified at the Drafter 3 level. I . ! In a grievance filed on June 12, 1990, the grievor claimed that he ~as improperly classified and requested "reclassifica1:ion to TM-16 (a management classification) or a classification with similar salary and retroactive to January 1, 1986." For reasons which follow, this grievance is allowed in par~, in that the Board has concluded that the grievor is improperly class~fied; however, I we have declined to make the requested retroactive reclassification 1. and instead remit the matter to the parties under a Berry Order. II. FACTUAL BACKGROUND The grievor is employed in the Engineering and Right-af-Way Office of the Eastern Region of the Ministry. This office has five sections: Structural, Geo-Technical, Property. Planning and Design, and Surveys and Plans. The grievor is employed in the Structural Section. . I ...-------.... AWARD I. INTRODUCTION This appears to be another in a series of cases addressing the question of the propriety of the classification FOR persons performing drafting and related duties in the Civil Service. In this case, the grievor is a senior Structural Drafter with the Ministry of Transportation, Eastern Region in Kingston, Ontario. He is classified at the Drafter 3 level. In a grievance filed on June 12, 1990, the grievor claimed that he was improperly classified and requested "reclassification to TM-16 (a management classification) or a classification with similar salary and retroactive to January 1, 1986. " For reasons which follow, this grievance is allowed in part, in that the Board has concluded that the grievor is improperly classified; however, we have declined to make the requested retroactive reclassification and instead remit the matter to the parties under a Berry Order. II. FACTUAL BACKGROUND The grievor is employed in the Engineering and Right-of-Way Office of the Eastern Region of the Ministry. This office has five sections: Structural, Geo-Technical, Property, Planning and Design, and Surveys and Plans. The grievor is employed in the Structural Section. : .. 2 The grievor's duties and responsibilities were outlined in a "Performance and Planning" document for the year 1990 as follows: L Preparing Contract Drawings {40%} - Prepare accurate and neat contract drawings In accordance with current guidelines, policies and procedures. Concrete culverts, non-complex new structures. 2 . Quantities and Rebar Schedule (Together with duties 3 and 4 : 35% - 40% ) - Accurately compute and document quantities for all structural materials for each project by the specified completion date. - Prepare accurate reinforcing steel schedules, computerized where specified, for each project by the specified completion date. ] - Review of work by others (Together with duties 2 and 4 : 35% - 40%) - Review for accuracy, completeness the contract draw ings, quantity calculations and reinforc ing schedules by other drafters and consultants. 4 . Planning, Field Work and Documentation (Together with duties 2 and 3: 35% - 40%) - Prepare accurate, complete, planning drawings, compute dimensions, alignments, grades, and elevations as required. 3 - Assist, carry out field work as required in compliance with Safety Guidelines, etc. - Prepare structural project D4's, Bill of Materials, where assigned. 5. Supervision (20% - 25% ) - Review all drawings, quantities, Bill of Materials, etc. prepared in Drafting Section by consultants. - For conformance with Ministry and Section standards. - Maintain record of all drafting requests for assignment to Drafting Section and equally distribute work to drafting staff. - Review time sheets and maintain records of work carried out by the drafters. - Provide daily direction to Drafting Section Staff regarding policies and standards, etc. regarding work. - Provide performance related information to Head, Structural Section regarding drafting staff and assist in formulation and review of PPR's for all drafters. - Implementation of CAD (Computer Assisted Design) . Provide assistance to Head, Structural Section regarding training, implementation, etc. of CAD 1n structural Section. 4 The grievor testified that he has spent almost 20 years with the Ministry. He became a Drafter 2 in the Structural Section in 1980 and was promoted to the position of Drafter 3 in 1984. According to the grievor, from 1980 on there was a steady accretion of duties and responsibilities to his position. Many of these had to do with an ever-increasing level of computerization. Apparently, this was a priority with the Senior Structural Engineer who came into the section in 1980, Mr. Ted Lane. Mr. Lane was the grievor's direct supervisor. At that time, there were only about 2 computer programmes with which the grievor had to be familiar. These were the BR340 programme, which was used to calculate the amount of rebar needed for a bridge of a particular size and design, and the BR310 programme which could be used to calculate concrete quantities necessary for bridges, although, the grievor testified, this calculation is still more accurately performed by hand. In 1982, however, the grievor began using the BR470 programme, which was adapted to calculate all elevations, offsets and grades for new structures and new alignments. Then came responsibility for knowing how to use the TAPS (tender analysis and payment system) programme for calculating the 5 quantities of materials required for bridge construction which was going to be tendered out to private contractors. The idea was to provide the contractors with an estimate of the quantity of materials which would be required in order to assist them in producing realistic tenders for the work. Then, in 1984, the grievor assumed responsibility for the OSCLIS (Ontario street clearance and load information system) programme. The grievor is the custodian of this programme, and as such is responsible for entering into a data base the clearance between all new bridges and highways as well as any reductions in clearances which may have occurred by virtue of re-paving, etc. The grievor also is custodian of the FOCUS programme, which is an updating system for a data base containing the highway inventory of Ontario. Whenever an improvement is made in a highway, the grievor codes the information into the data base. The grievor testified that before entering the information into the data base, he checks it for errors. Apparently this is the final check made within the region, although a further check is conducted by a person at head office. About three years ago, the grievor testified, he took a course at St. Lawrence Community College in the use of the programme called Lotus 1,2,3. Since then, he has adapted the spreadsheet from this programme to office use and uses it for purposes of 6 recording the assignments to the various drafters in the section and maintaining time records for the section. The most significant change to the grievor's job, however, came about in March, 1990 when he started using CAD (computer assisted design) for purposes of performing his drafting duties. Apparently, the grievor started out using a programme called Auto Cad and then, in July, 1990, he was trained to use a more advanced computerized drafting work station called Auto Tool. As a result, it has been 8 to 9 months since the grievor used any manual skill in the manipulation of drafting tools to produce the engineering design drawings for which he is responsible. Because of the radical change occasioned by the introduction of computerization, the grievor now spends 35% of his time at a computer work station, performing drafting duties. The grievor also testified that there were other accretions to his duties over the last decade. This evidence had primarily to do with the reliance which the Senior Structural Engineer placed upon him to provide helpful feedback to designers derived from (1) his lengthy experience in dealing with the construction of bridges, and (2) certain design responsibilities which the grievor executed when it came to the building of temporary bridges known as Bailey Bridges. With respect to the latter, the grievor stated that once he was advised about the length of the span, he would execute the complete design himself by looking in the manual for the component · 7 part s , preparing a bill of materials, calculating the total weight of the bridge, and checking the drawings produced by the Drafter 2's working under his leadership. The grievor also stated that he carried similar design responsibility when it came to the design of barrier walls or approach slabs. He agreed on cross-examination, however, that the only thing that varied in design from one such structure to another was its width and that in the end, it was up to a designer or engineer to accept or reject the design the grievor suggested. The sole witness for the Ministry was Mr. Ted Lane. He testified that for the past five years he has been the head of the Regional Structural Section for the Eastern Region. Prior to that, he stated, he was the Senior Structural Engineer in the Structural Section. Mr. Lane agreed that computers had created an impact upon the Structural Division. He said that computerization had largely been responsible for an increase in productivity of the section. He stressed, however, that while computer-assisted design changed how drafting duties were performed, the end product was identical to the product which was produced by hand. He stated that 60 to 80% of all drawing in the section was now performed using CAD. He added that it is common now for drafters from community colleges to have solely CAD skills and not manual drafting skills. The 8 grievor, he said, was required to have both skills -- for now. As to the other claims of the grievor, Mr. Lane explained that the grievor was not involved in design work per se, but in detailing conceptual designs from a designer-engineer. According to Mr. Lane, the engineer's portion of design work involved application of structural engineering principles and the drafter's job consisted of detailing those concepts into a drawing. Using as an example the replacement of a barrier wall, Mr. Lane stated that the engineer determines the dimensions, thickness and spacing of reinforcing steel while the drafter would determine the length, number of panels of wall and number of bars of steel required. Mr. Lane agreed that as the drafter details the concepts given to him or her by the designer, there is a fair amount of inter- action between the two. He stated that things that did not fit as the designer anticipated they would and other such functional details would be brought to the designer's attention by the drafter and the latter would then make the necessary changes. Everything, Mr. Lanes stressed, was subject to the approval of the designer. As to the grievor's claim regarding Bailey Bridges, Mr. Lane agreed that the grievor was knowledgeable regarding such bridges and had taught other drafters the detail drawings for Baily 9 Bridges. III. THE PRINCIPAL SUBMISSIONS OF COUNSEL In argument, counsel for the grievor submitted that the evidence clearly established that the grievor was no longer in the class standard for the Drafter series. The Drafter series, it was submitted, was rapidly becoming obsolete because it emphasized the use of manual drafting skills and did not even mention the skills essential to drafting using computer-assisted design. Counsel for the Ministry, on the other hand, claimed that despite the change in required skills since the class standard for the drafter series was established in 1962, the class standard remained a remarkably good fit. It remained so, counsel stressed, because the end product, i.e., the drawing, remained precisely the same regardless of whether it was produced by computer or by hand. IV. CONSIDERATION OF THE SUBMISSIONS We think that the ACCRETUIB of duties to the grievor's position primarily as a result of the computerization of the drafting process operated to remove the grievor's position from the class standard for the Drafter series. This case is virtually indistinguishable in its essential repects from Re Eldon and Ministry of Transportation ( 1989 ) , G.S.B. #1324/88 (Samuels) , in 10 which the Board concluded that Mr. Eldon, who was classified as a Drafter 2, no longer fit within the class standard for the Drafter series by reason of the accretion to his position of computerized drafting skills. In that case, the Board said: Mr. Eldon is an old hand in the office. He's been there since 1964. The computation and drawing used to be done with pen and paper. Later hand calculators assisted in the calculations. Today almost all his work is done on the computer. There are programs to do the calculations necessary to check the field notes, and to prepare the raw data for presentation on plans. There are graphics programs to prepare the material for the drawings, which are done on a plotter. ... The Drafter Series commences with a preamblè (appended to this award as Appendix 1), whose first words are "In general, employee work assignments in this Series require the exercise of manual skill in the manipulation of drafting tools, and the utilization of knowledge of technical procedures, engineering practices and mathematics in order to complete clear accurate plans". . . . The grievor has not only learned new skills land acquired valuable experience, the Ministry employs these skills and this experience. His job now requires that he exercise these skills and call on this experience. In our view, it can no longer be said that the grievor simply exercises "manual skill in the manipulation of drafting tools". Therefore, his job is not properly classified in the Drafter Series. Id. at pp. 2-7. Because almost all of Mr. Eldon1s work was done on the computer, it was concluded that his position no longer fit within the Drafter Series which required in its preamble "the exercise of manual skill in the manipulation of drafting tools." In the present case, virtually all but the grievor1s group leadership and field responsibilities are performed on a computer. 11 He spends 35% of time in the performance of computerized drafting duties. As the evidence indicated, he also uses the computer to perform a variety of other functions, including the performance of calculations and maintaining essential records. While, as Mr. Lane testified, the Ministry expects the grievor to maintain for the time being his manual drafting skills, there is no doubt that since the introduction of CAD, Auto CAD and Auto Tool in 1990 the grievor's computer skills have taken the forefront. Counsel for the Ministry referred to two other cases, Re Chau and Ministry of Transportation (1990) G.S.B. #172/89 (Watters); and Re O'Kapiec and Ministry of Transportation ( 1989 ) , G.S.B. 198/89 ( Gorsky) , for the proposition that the accretion to a position of computer skills without any change in the output from that position was insufficient to warrant reclassification. We do not think that these cases go that far. In Chau, the grievors only spent approximately 12% of their time working with computers and that there was no evidence that they were performing their drafter functions in a computerized manner. See ide at pp. 2,4. In O'Kapiec, the grievor was already in a classification clearly requiring the use of computer technology. He was merely seeking reclassification because his computer-related duties had increased from 40% of his job in 1980 to 60% of his job in 1989. See ide at p. 19. The Board - essentially concluded that the greater use of the computer did not 12 justify reclassification. V. REMEDY Having concluding that the grievor is improperly classified in the drafter series, we turn to the question of remedy. Counsel for the grievor submitted that we ought to reclassify the grievor into one of several alternative higher-rated classifications, and not just the management classification claimed in his grievance. Evidence was led from a witness who was classified as a Designer 1 in an attempt to demonstrate that the grievor, who was performing duties at a higher level, should, in a twist upon the classical "class usage" argument therefore be entitled to be slotted in at the level of Designer 2. This evidence was led over the vigorous objection of counsel for the Ministry, who submitted that there was no precedent for twisting the class usage argument beyond its accepted bounds of ensuring that like positions be treated in a like manner. We agree. The class usage argument should be confined to its usual realm. There seems to be no justification for allowing it to be used to "boot strap" a claim for a higher classification than that of the witness. Accordingly, we decline to give weight to the testimony of Mr. Hiscock in formulating our decision in this award. · 13 This means that we have no alternative here but to issue a Berry order remitting the matter to the parties for the determination of a proper classification for the grievor without undue delay. Finally, we must say that we reject the submissions of counsel for the grievor on retroactivity. There are two reasons for this. First, on the grievor's own evidence and that of Mr. Lane, the accretion to the grievor's duties which tilted the scales in favour of removing his position from the Drafter Series was comprised of the computerized drafting skills in March to July, 1990. The grievance was filed in June of 1990. In light of this, there would appear to be little in the way of support for an award of retroactivity back to 1986. Secondly, we must follow the usual rule of the Board in cases where the grievor seeks retroactivity beyond the usual limit mandated by the filing date of his or her grievance. That is, that "barring the existence of circumstances which would make it inequitable for the Ministry to rely upon it, retroactivity will be limited to the period of time within which it was permissible for the grievor to file his grievance. " Re Smith and Ministry of Community and Social Services (1985), G.S.B. #2237/81 at p. 6 ( Roberts) . See also Re Lowman and Ministry of Transportation and Communications (1986), G.S.B. #13/82, etc. (Sal tman) . 14 The ma.'tter i. reølitted to the parties in thia poature. we will retain jurisdiction pending i.mplelllentation of the term. of our award. DATED at London, Ontario, this 7th of November. 1991. R. 2BJdF- ',,_ ,'J'~, .,.,.'v R. Scott, ~ployer Member