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HomeMy WebLinkAbout1990-1689.LaFrance.92-01-23 ONTARIO EMPL OY~'S OE /..A COURONNE CROWN EMPLOYEES 'DE L 'ONTA RIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~80 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTAR~), MSG 1Z8 TELEPHONE/T£L£PHO/VE: (416) 326-~38B ;80, RUE OUNDAS OUEST, BUREAU 2100, TORONTO ~ONTARtO). A45G ;Z8 FACSSf~4~LE/TELECOP~E : (416) 326-1.396 Z689/90 IN THE I~TTER OF HN ~BITR~TION Under THE CRO~rl~ EMPLOYEES COLLECTIVE B~RGHINZNG HCT Before THE GR~EV~CE SETTLEHENT BO[~RD BET~I~EN OPSEU (LaFrance) Grievor - and - The Crown in Right of Ontario · (Ministry of Natural Resources) Employer BEFORE: R.'Verity Vice-Chairperson E. Seymour Member D. Montrose Member FOR THE C. Dassios GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D. Jarvis EMPLOYER Counsel Winkler, Filion & Wakely .Barristers & Solicitors HEARING March 13, 1991 July 5, 1991 2 DECISION Wayne LaFrance works as a Fish and Wildlife Technician in the Huronia District of the Ministry's Central Region. In a grievance dated August 20, 1990, Mr. LaFrance allege~s that he is improperly classified as Resource Technician 3 and requests reclassification as Resource Technician, Senior 1 with full retroactive benefits to March 27, 1990. In the alternative, the Union seeks reclassification under a Berry type of order. The hearing proceeded solely on the basis of the class standard approach to classification matters. It was agreed that there was no evidence to support a usage argument. Following graduation from a .related community college course (Sir Sanford Fleming) in 1974, the grievor i~as worked as a Fish and Wildlife Technician in the Huronia District. In fact, he has held his current classification for approximately 17 years. There is no real dispute as to the nature of the grievor's duties and responsibilities. The parties agree that h~s duties are reasonably accurately set forth in a Position Specification Form dated August 1, 1990. That document was prepared, in material parts, by the grievor and his immediate supervisor District Fish and Wildlife Management Co-ordinator, Richard Toth. The relevant Position Specification Form is reproduced in 3 material parts: 2. Purpose of position Under the general supervision of the Fish and Wildlife Co- ordinator, to assist the District Biologists in the planning and implementation of fisheries and wildlife management projects. 3. Duties and related tasks 1. Assists the District Biologists in the planning and implementation of the Huronia District fisheries and wildlife management programs by: - recommends the purchase organizes and maintains equipment including boats, nets, outboard motors, thermistors, depth sounders, marking and tagging equipment, radio tracking transmitters and receivers, snow machines, electroshockers .and laboratory equipment; ~ responsible for keeping the district up-to-date with new fisheries technology and for experimenting with new techniques i.e. radio telemetry, aging techniques; ~ participating in training seasonal staff in correct and-safe equipment operation and field collection of data (including creel census, netting procedures and Wildlife surveys; such as, wild turkey trap and transfer); - maintaining quality control over field records by auditing data obtained from field surveys; ~ auditing field and laboratory programs to ensure 'conformity to proper procedures, identifying problem areas and recommending solutions through changes' in methods or materials; - organizes and carries out lake.and stream surveys, egg collections, fishway operations, contaminant sample collections and other management projects by: 75% . - conducting field studies of fisheries resources including habitat inventory, fish' population stUdies and resource user assessments;· - analyzing biological or chemical samples including fish stomachs, routine a~eing of fish through interpretation of calcified tissues, spines, bones, scales, etc; - liaising with other environmental agencies including Parks Canada, Fisheries and Oceans, Ontario Ministry of Environment, Conservation Authorities, Ducks Unlimited, Ontario Hydro and private Environmental Consulting Agencies; - compiling and analyzing data, preparing written reports on field methods, equipment and results of projects; 2. Assists in implementing the fish and wildlife management programs in Huronia District by: - investigating and reporting on fish kills, pollution, fish diseases and parasites, nuisance animals; - assists in enforcement of the Canada Fisheries ~ct, Game and Fish Act and other legislation and Regulations as required; - organizing and supervising the district's deer and moose hide/jaw program; 15% - organizing and supervising the district wild turkey programs. 3. Other duties: - performing public relations duties by answering public inquiries 10% - acting as a group leader to staff assigned to projects (i.e. seasonal, Junior Rangers etc.) 4. Skills and knowledge required to perform job at full working level Technical skills and knowledge at the level usually associated with the successful con~letion and graduation from a reiated three year course of study at a community college. Skill in the usage ,Df highly specialized laboratory equipment, i.e. trichinoscope, isomer saw, compound microscopes. Significant field experience in fisheries and wildlife management. Thorough knowledge in the application of fisheries sampling gear use, maintenance and repair. Extensive experience with boats (outboards/sterndrives) and snowmachines. Demonstrated ability to write technical reports (i.e. prepare maps, graphs, etc., undertake literature searches). Physical ability to work in bush and on lakes under adverse weather conditions; ability to maintain good public relations with interest groups; enforcement training at Police College, extensive experience as D.C.O. in enforcing the Game and Fish Act, Fisheries Act, Migratory Birds Convention Act. Valid MTC "D" class driver's license. Ensure Employment Equity initiatives and objectives are instituted and carried out in support of Employment Equity work program planning targets. Knowledge of the Occupational Health and Safety Act and those regulations made under the act that aPply to the work supervised or controlled. The Class Standards placed before us with accompanying preambles read as follows: PREAMBLE RESOURCE TEChNICIAN.SERIES This series covers the positions of employees engaged in the performance of operational duties in any one or more of the specialized services, e.g. Forest Protection, Timber, Fish and Wildlife, Lands, Parks, Research, etc. Employees in positions allocated to this series may perform a variety of duties ranging from those of a manual nature requiring only a relatively elementary understanding of natural resource management to those of a technical nature requiring independent judgment. Entry into this series for candidates who are graduates of an approved Technical School in Resource Management o~r an approved related discipline is at the Resource Technician 2 level. At this level such employees receive training in practical aspects of theories studied and, as experience is gained, daily supervision is reduced to instructions covering specialized technical problems. 6 Positions involving full time performance of Fish and Wildlife management and/or enforcement duties are restricted to employees who are graduates of an approved Technical School in Resource Management. Research Branch positions allocated to the third level in this series will normally be underfilled by one grade for a period not longer than one year, to allow for the necessary "on the job" training in specific research aspects of the duties involved. Positions will be allocated to a specific level in this class series only when all the requirements of that level have ~been fulfilled. DEFINITIONS FOR USE WITH THIS SERIES Service: Functional field equivalent of a Ministry Division, e.g. Forests, Mines, Fish and Wildlife, Parks, Conservation Authorities, Field Services, Lands. CRITERIA FOR RANKING FISH HATCHERIES Type A - year round trout culture. Type B - seasonal pond culture. Type C - trough or jar culture. CRITERIA FOR RANKING PARKS 1. Camper days 2. User Days 3. Large natural environment. 4. Complexity because of special situations. RESOURCE TECHNICIAN This class covers positions of employees performing more complex, demanding and responsible technical duties containing considerable latitude for decision making e.g. check scaling; compiling lake development data; training fire crew; operating type "C" parks or type "C" hatcheries; carrying out Fish and Wildlife management and/or enforcement work; gathering, assembling an~ compiling technical or scientific data, preparing technical reports and/or.plans; assessing technical needs of management or scientific projects and submitting technical recommendations, etc. in any assigned area of responsibility. 7 They may supervise and/or train regular employees or take charge of groups of casual employees and, in this context, organize and schedule activities within the general framework of laid down plans or instructions and assume responsibility for the quality and quantity of production and for the work performance of assigned staff. SKILLS AND KNOWLEDGE REOUIRED: Ability to organize projects and supervise implementation; initiative and ability to assimilate new techniques to be applied in a variety of situations; good understanding of resource management principles. PREAMBLE RESOURCE TECHNICIAN, SENIOR SERIES This series covers the positions of Senior Technicians in the field of natural resources management. Some positions are .those of specialists concerned with planning, the provision of functional advice, policy and standards control, other positions are those of supervisors involved in the implementation of varied and complex resource management programmes. The basic requirement for both groups is a thorough knowledge of the principles of resource management and technical expertise. The working level of non-professional district staff specialist positions is at the Resource Technician, Senior 3 level. However, positions may be allocated above or below this level, if, in the assessment of senior management, the priority given to the management objectives of the service (s) places greater or lesser demands on the position than is typically found on a province-wide basis. The reasons for such an assessment must be meaningfully documented by senior management in each instance. In any such allocation,, the following two conditions must be met: (a) The number of positions at the Resource Technician, Senior 3 level in any individual service must be greater than the number of positions'above this level. (b) The number of positions a__t the Resource Technician, Senior 3 level in any individual service must be greater than the number of positions below this level. Research Branch positions allocated to the first and second level in this series will normally be .underfilled by one grade for a period not longer than one year, to allow for necessary "on the job" training in specific research aspects of the duties involved. Positions of Senior Technicians assigned to the Head Office or Regional Offices are allocated to specific levels in this class series on a comparatiYe basis with district positions in relation to such factors as planning, standards control, policy interpretation and implementation, policy recommendations, etc. Positions will be allocated to a specific level in this class series only when all the requirements of that level have been fulfilled. DEFINITIONS FOR USE WITH THIS SERIES Service: Functional field equivalent of a Ministry Division, e.g. Forests, Mines, Fish and Wildlife, Parks, Conservation Authorities, Field Services, Lan.ds. Sub-Service: Functional field equivalent of a Ministry Branch, e.g. Forest Management, Mineral Resources Management, Wildlife Management, Parks Management, Fire Control, Lands Administration. Work Planninq: Planning over a relatively short period where the major factors are provided, e.g. objectives, specific targets, expenditure allotment, time limitations, areas, etc. Lon~-ran~e 0Derational Planning: Planning involving participating of field offices and the Head Office in the setting of Regional and/or District objectives; developing and establishing alternatives for meeting these objectives; analyzing these alternatives; recommending the course to follow; etc. Research Station: A formal unit or organization with permanently assigned regular and/or probationary staff of Research Scientists and non-professional research assistants, conducting, on a year-round basis, scientific work assigned by the Research Branch. 9 CRITERIA FOR RANKING FISH HATCHERIES Type A - year round trout culture. T_ype B - seasonal pond culture. Type C - trough or jar culture. CRITERIA FOR RANKING PARKS 1. Camper days 2. User days 3. Large natural environment 4. Complexity because of special situations. CRITERIA FOR RANKING TREE NURSERIES: Type A - Annual production target of at' least 10 million seedlings or an annual production of at least 6 million seedlings plus production of special stocks plus minimum of 10 species produced. Type B - does not meet the above requirement. RESOURCE TECHNICIAN SENIOR 1 This class covers positions of employees responsible on a district-wide basis for technical control of a sub-service; OR who act as senior assistants to district technical or professional specialists in determining methods and techniques, implementing.policy and controlling standards in 'one or more services on a district-wide basis. Also included are positions of employees who 'assist professional staff e.g. Foresters, Biologists, etc., in the management of Forest Units, Lake Units, Private Lands, etc. They participate in the development of management plans, prepare initial agreements with private land owners, prepare work plans and annual budget estimates, organize and schedule units work and exercise budget controls. Positions of supervisors who on a year-round basis have administrative responsibility for a formal unit of organization (functional or territorial) and who, in this context, prepare work plans and. annual budget estimates, organize and schedule the unit's work and exercise budget controls, are .also allocated to this level. Positions of employees in charge of type "B "parks or type "B" hatcheries or second-in-charge of type "B" tree nurseries, are included at this level. i0 In this Research Branch., this class covers positions of non-professional, fully trained and experienced research assistants in various disciplines of scientific research who under _direction of a Research Scientist, carry out assigned technological phases of research and have full responsibility for the validity of obtained or processed data and the preparation of reports involving preliminary analysis of such data. SKILLS AND KNOWLEDGE REOUIRED: 1. Supervisory ability; some administrative ability; ability to co-ordinate several projects and to prepare work plans; personal suitability. 2. Extensive knowledge and thorough understanding of objectives, methods and techniques applicable to the assigned work area; good working knowledge of relevant legislation. The grievor gave detailed testimonY regarding his duties.and responsibilities and the fact that he is now required to supervise one employee classified as Resource Technician 2 as well as two seasonal staff. The thrust of his claim for reclassification is his perception of working at the level of Resource Technician, Senior 1 in assisting professional staff, namely two biologists, in the management of forest units, development of management plans, the preparation of initial agreements with private land owners, the preparation of work plans and annual budget estimates and the exercise of budget controls - all as specified in the second paragraph of the classification sought. In particular, the grievor maintains that there were significant ,additional duties acquired beginning in 1986. such as hiring staff, certain purchasing responsibilities, scheduling of duties of subordinate staff, budgetary responsibilities and the occasional negotiation of 11 contracts. The grievor's supervisor Richard Toth testified on behalf of the Employer. Mr. Toth acknowledged that the grievor received his instructions primarily from the two district biologists and that he was fully responsible for field work in fishery and wildlife projects which comprise some 75% to 80% of his allotted work. Mr. Toth agreed that since 1987 or 1988 the grievor planned the work of his subordinate but had no responsibility for the development of management plaqs or long range planning, no real purchasing authority and no effective budgetary control. He did agree,- however, that there had been both qualitative and quantitative changes in the grievor's tasks, since 1986. The Union's first position is that the grievor is entitled to the classification sought due to the fact that his duties fall squarely within the second paragraph of the Resource Technician, Senior 1 class standard. Mr. Dassios contends that the current class standard fails to encompass the grievor's administrative and planning role. In the alternative, the Union seeks a Berry type of Order. In support, the Union referred to the following authorities: OPSEU (Beach) and Ministry of the Environment, 816/86 (Fisher); OPSEU (Cardno et al) and Ministry of the Environment, 530/88, 2761/86, 2~62/86, 2763/86, 2764/86 (Stewart); and OPSEU (Peter Fenske) and Ministry of Government Services, 494/85 '(Verity). 12 The Employer argues that the grievor is properly classified as Resource Technician 3 and that there is no justification for the classification sought. Mr. Jarvis referred to the following authorities: OPSEU (Boileau} and Ministry of Natural Resources, 724/88 (Kirkwood); OPSEU (Maloney et al).and Ministry of Natural Resources, 1761/87 (Devlin); OPSEU (Wales) and Ministry of Natural Resources, 2417/87 (Dissanayake); OPSEU (C'Neill) and Ministry of Natural Resources, 1526/87 (Dissanayake); and OPSEU (Avery/Broderick) and Ministry of Natural Resources, 1233/88 (Verity). On the evidence adduced, there can be no doubt that -the grievor is a competent and experienced employee who has been assigned additional tasks in recent years. We are satisfied, however, that he performs a variety of operational field duties as a fish and wildlife technician as contemplated by the current class standard. We do not agree that the additional duties acquired or the planning aspects of his job place him beyond the current class standard. The additional duties acquired as, for example, the purchase of equipment, the hiring of staff, the supervision of subordinates, the negotiation arrangements are all incidental aspects of performing core operational duties. The essence of the grievor's job is to perform and oversee the operational aspect of all fish and wildlife projects in the district. In our view, the evidence does not indicate that the grievor participates in the development of management plans, or prepares annual budget estimates or exercises budget controls. Simply stated, the evidence of the grievor's actual duties and responsibilities falls far short ~f the management planning function contemplated in paragraph 2 of the Resource Technician, Senior i class standard. Accordingly, we must conclude that the grievor is properly classified as Resource Technician 3. For these reasons, this grievance is dismissed. DATED at Brantford, Ontario, this 23rd day of Ja_nuary, 1992. R. L. VERITY, Q.C. - VICE-CHAIRPERSON "I Dissent" (dissent attached) E. SEYMOUR - ·MEMBER . D. MONTROSE - MEMBER File 1689/90 OPSEU (LaFrance) and the Crown in Right of Ontario (Hlnlstry of Natural Reso~:ces) DISSENT - EDWARD E. SEYHOUR, Employee Nominee ! have read the majority award and find that I must with respect dissen~ from it's findings. While I do concur with the majority to the extent that Mr. LaFrance's duties are no~ su£fi¢ien% to take him from Resource Technician $ (RT$) to Reso%~rce Technician Senior ! (RTS1), I do believe they are sufficient to warrant the award of a reclassification under a Berry t~e of order. The grievor's duties, i.e. assisting 'the Blologists~ his participation in assisting in the development of Management plans, his preparation and negotiation of agreements with private landowners~ as wel~ as his supervisory duties, exceed the responsibilities outlined in the RT$ class ~tandard. The grievor's responsibilities are greater than those of an individual who simply takes directions from others. His responsibilities regarding the preparation of program plans are more than simple technical duties. He assists ~he Biologists in planning and implementing different programs. Once a program is drawn up the grievor is responsible fo~ all o~anizational aspect~, including hiring of staff, making recomm~ndations as to what equipment to purchas6, purchasing ~hat equipment, and ensuring the equipment is kept in a proper state of repair. Non~ of his recommendations with respect to these responsibilities have ever been rejected. as. for any summer help. It is %he grievor who decides who will go on the short list for such positions and he participates as an equal membe~ of the hiring committee. His recommendation on who to hire has always been accepted.. The grievor supervises the RT2 staff in both th~ field and office, It is he who draws up their daily work schedules, authorizes changes, and signs overtime. The grlevor selects the lakes' to be surveyed, determines what program to carry out and, spends time do~n~ land development proposals. It is he'who is the Ministry's liaison with other Ministries,.i.e. the Hin~stry of the Environment (water sampling), as well as with private organizations (Ducks Unlimited). He also ~eals with private consulting firms to tender out projects (Angler Surveys). The budget is monitored by the grievor for the projects which are his responsibility and i% is he who ensures that monies are available to pay~for the contractors hired, to carry out the various Ministry 9rojects. Management witness Toth concurred %hat the grievor had a role to play with respect to hiring outside contractors on the Moose and Deer Mide an4 Jaw program, as well as drafting contrac%~ for private landowners for the Stream Survey. He admitted that prior %o 1986 the grtevor had no role to play in these responsibilities at all. He further admitted that the RT2 position ~id not exist prior tO 1987. The grievor's responsibilities as outlined above, take him out of the RT3 standard. Prior to 1986 the grievor ha~ no hiring responsibilities, f~w purchasing responsibilities and practically nothing to do with budgets. He did not write contracts and had no authority ~ver RT~'s. In addition he did no~ have the r~sponsihilities he currently doe~5 with respect to c&rr¥in~ out projects assigned to him by 3iologists. Many of these duties are assigned to the ~rievor following direct consultation Detween %he grievor and ~he ~iologis~s. As stated a% the outset, I agree these dutie~s are not sufficient to place the grievor in the RTSl classification. TheF are however significant enough to permit.this panel to .~irect the Ministry to reclassify the grievor through a Berry type of award and I would have so ordered, E. Seymour, Member