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HomeMy WebLinkAbout1991-0752.Westover et al.93-01-07 ONTA RIO EMPLOY~-S DE LA COURONNE :  ' CROWN EMPLOYEES DE L'ONTARtO GRIEVANCE C.OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100. TORONTO, ONTARIO. MSG ~Z8 TELEPHONE/Td-LEmHoNE: ~ :~6) 326- ~388 780. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1Z8 FACSfMILE/T'~LLSCOPIE : ~4 f6,~ 326- ;396 _. 752/91, 753/91, 754/91, 755/91 IN THE ~TTER OF ~%N ~RBITRATTON Unde~ THE CROWN EMPLOYEE~ COLLECTZ~E B~%RG~%TN~N~ ;[CT Before THE GI~IEVANCE SETTLEHENT BOARD BETWEEN OPSEU (Westover et al) Grievor The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE B. Kirkwood Vice-Chairperson S. Urbain Member D. Halpert ~ember FORT HE. A. Ryder GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR~H~ F. Gallop EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors H~ARING June 2, 1992 October 8, 1992 Page DECISION The four grievors, Mr. S. Okum, G. Westover, H. Hess and P. Ede were employed as Traffic Technicians 3 in the Municipal Maintenance Office of the Southwestern Region. The grievors gather data on traffic volume, and do directional surveys and speed surveys for traffic field studies. The Class Standards for the Traffic Technician 3 states: CLASS DEFINITION: This class covers positions of fully trained employees engaged in traffic field surveys. These employees under the general direction of supervisor observe and record traffic characteristics data by utilizing well defined survey techniques and mechanical and electronic equipment to conduct such traffic surveys as: Complicated vehicle movement patterns at high volume locations, "spot speed' and "speed and delay surveys, driver behaviour and vehicular performance surveys. They prepare comprehensive field notes, scale sketches of physical details, signing and pavement markers. They carry out minor repairs to counting and other equipment. They assist in training junior staff, during the regular course of duties these employees operate and are responsible for a Departmental vehicle. OR On a temporary basis they may act as party chief in charge of a crew of 6 men engaged in origin-destination surveys for a period of time in order to gain experience in a supervisory capacity. OUALIFICATIONS: 1. Grade 10 education, Grade 12 preferred. 2. Possession of a current Chauffeurs Licence. successful completion of D.H.O. Safety and Road Tests in traffic. Page 3 3. At least 2 years' experience as a Traffic Technician 2 or related experience; and successful completion of the Departmental examination. 4. Good physical condition. Good judgment, ability to effectively deal with people. The Union claims that the standard which was written in 1967 was based upon equipment that was mechanical, electronic and fairly simple. The Union's claims that the grievors' functions changed substantially in 1982, when the employer introduced new computerized equipment to replace the mechanical counting equipment. The Union submits that now there is no existing class standard which accurately describes the grievors' duties and responsibilities. Accordingly, the Union is asking the Board to order the Employer create a more appropriate classification for the grievors' position, such as commonly known as a Berry order, retroactive to 20 days prior to filing the grievances. Union's counsel agrees that the grievors' Position Specification dated August 1990 is generally accurate, but states that the Position Specification does not include the functions of programming electronic data equipment and downloading data, done by the grievors. The Union also alleges that the grievors acted independently of the the supervisors. The Position Specification is attached to this decision as Schedule 1. The Employer did not call any evidence. The grievors, Mr. OkumandMr. Westover were the only witnesses. The grievors receive their instructions for the field studies from their supervisor. The supervisor instructs them on the nature of the study, the period of study and location of the study. The grievors then attend onsite to observe and record traffic counts, to set counters, or to retrieve information from counters. Page 4 In the early eighties, the grievors used mechanical equipment. In 1980, they used the Fischer Porter counter or an ATR counter to check traffic volume. The Fischer Porter counter was attached to a roadhose that stretched across the road and recorded each time an axle crossed the hose, onto a punch tape in the Fischer Porter counter. The counter was left by highways to record traffic volume over specified periods of time. At the conclusion of the interval, the grievors took the punch tape from the Fischer Porter counter and submitted it to the traffic office. The ATR counter was a similar device to the Fischer-Porter counter. The ATR was attached to a loop detector, which was permanently installed in the road surface and counted each vehicle entering the loop. When a vehicle entered the loop, the vehicle interrupted the electronic field and sent a signal to the ATR counter which printed the number of vehicles onto a tape. Mr. Westover also used a Junior, which was a similar piece of equipment, but it did not have a tape. He recorded the opening and closing numbers and subtracted the difference and submitted the information to the office. The grievors also used a Manual Turning Movement Board to count traffic volume entering an intersection. This was a mechanical device composed of four banks of mechanical clickers, each representing the direction the vehicle was travelling and the type of vehicle. The grievors observed the vehicles and counted them by depressing the appropriate clicker that matched the vehicle type and direction observed. The grievors recorded the amounts indicated by the clickers at the end of each hour. At the end of every interval, the grievors reset the board to zero and submitted the information to the office. The grievors used a Vehicle Classification Board which is similar to the Manual Turning Movement Board to correlate up to sixteen types of vehicles and the directions they travelled. Again, the grievors observed the traffic and manually depressed Page 5 clickers, counting each vehicle and recording the counts hourly. At the conclusion of the interval, they recorded the volume of traffic, reset the Vehicle Classification Board to zero, and submitted the information to the office. The grievors occasionally set up a Stevenson Radar Gun outside their car to record speeds of vehicles. in 1982, the Employer introduced the Marksman 340 Counter Classifier which was attached to a computerized counter, the Golden River Retriever. Its function is to record traffic volume, traffic speeds, lengths of vehicles and directions of vehicles. It replaces the Fischer Porter Counter and the Vehicle Classification Board. It is operated by inputting directions into the Golden River Retriever. The grievors operate the Golden River Retriever by moving a cursor to the appropriate selection on the computer's menu. The grievors input the number of the traffic site where the counter was located, they select the interval wanted, the start date and start time and the purpose of the study. The grievors determine the nature of the study by choosing one of four configurations and entering the appropriate code, taken from a manual. They do not have to change the configuration often. Although the equipment had a capacity for 25 configurations, the other configurations were not used. When the grievors do speed surveys, they 'choose thresholds of up to 12 speeds. The grievors choose whether the Marksman is to use a fixed memory, which stops the counter when the memory is depleted, or a rolling memory, that allows it to continue and replace old data. The computer automatically enters the date and time of the study. The recording is set at zero at the completion of every interval. After the study is completed, the grievors take the Golden Retriever into the office where the office personnel download the information onto the main computer. Mr. Westover, however, uses a telephone modem to transmit the information he has Page 6 gathered to the main computer, as he works approximately 140 kilometres from Head Office. The Electronic Gretch Board replaced the Manual Turning Movement Board in the mid eighties. It is a self contained unit and counts the traffic at an intersection. It is operated in a similar fashion to the Marksman 340. However, as in the case of the Manual Turning Movement Board, the operator must visually watch the traffic and manually key in the type of vehicle and direction the vehicle is going. However, there is no manual recording of the data. There was some evidence given about the introduction of the Marksman 600. This equipment was only being tested and was not operated by any of the grievors as part of their job, although Mr. Okumhad used this equipment. The Union argues that the functions of the job have changed fundamentally as a result of the changes in technology. The Union submits that although the purpose of the position has not changed, the equipment displaced the core functions previously performed by the grievors. Union's counsel submits that the grievors' jobs have changed from information gatherers and recorders, to technicians of computerized equipment. The grievors are no longer involved to the same'degree in counting, but are now required to program equipment and organize data. Employer's counsel submits that the new equipment did not change the grievors duties and functions and~therefore the grievors are properly classified. Employer's counsel submits that the OPSEU (Sovereign) and The Crown in Right of Ontario, Ministry of Transportation, GSB # 241 (W. Low) dated October 2, 1991, a recent decision of the Grievance. Settlement Board decision dealt with the same issue that is before this panel. The grievors in the Sovereign decision were traffic technicians who performed the same job as these grievors in the Northwest Region. The board held that the grievors were not entitled to be reclassified as they were performing the same job, but with better tools. Employer's counsel argues that the Sovereign decision governs the present situation unless the Union is able to show distinguishing factors from Sovereign. Union's counsel argues that Sovereign decision of the Grievance Settlement Board, was patently wrong as the decision was based on the notion that as the equipment did not change the purpose of the job, there was no reason to reclassify the employees. The Union claims that it was a fundamental error of the law for the Board to focus on the purpose of the position and not on the duties, which is the focus of a classification. The board in Sovereign considered the classification of traffic technicians whose job was affected in part by the introduction of computerized counting equipment. After reviewing various functions of the grievors' jobs that were in contention, the board set out the same issue that is before us at page 6: Do these functions, in the context of the class standard and in the degree to which they occupy the Grievor's work t~me cause such a deviation between a totality of the job performed and the types of functions contemplated in the class standard that a reclassification should be ordered? In our view the board properly responded to that question when it stated at p. 6: Class standards are not intended nor drafted to be a compendia of job functions. By their very nature they describe, in general terms the role of an employee within the public service and do not nor are intended to contain an exhaustive list of functions or duties to be carried out by persons within the standard; nor are class standards intended to designate tools or methods by which the employees are to fulfill their duties. As to the effect of the new electronic counting equipment on the grievors jobs, the board stated: While it may be attractive to suggest that; because a computer is a sophisticated piece of equipment, the operation thereof therefore puts greater demands upon an employee required to operate one and requires a greater degree of qualification, this"concept must, however, be put into the context of the position to which the computer is used. The purpose of the position and the role of the person holding the Technician 3 classification is to conduct traffic studies, which to a large degree involves counting., recording and compiling. The advent of the computer has relieved the technician from the tedium of manual counting, recoding and compilation, and in the circumstances of this case at least, we cannot accept the proposition that the use of a tool which makes it possible to do the job faster and more accurately is the equivalent of changing the nature of the job. The job is the same and the function is the same. It is merely done with a better tool. First, although the board emphasized that the purpose of the job was not changed by the introduction of the equipment, the case does not stand for the general principle, that reclassification does not occur if the purpose of the job is not changed with the introduction of new equipment. The board restricted itself to the "circumstances'of this case, at least." Secondly, the board found that the 'new electronic counting equipment did not change the nature of the job and the grievors' functions. We are in a similar position. As class standards are ageneral description of a class of jobs, they cover a broad spectrum of duties and functions, against which a particular job is measured. The purpose of the position is only one factor to consider. If the purpose of the job had changed with the introduction ofnew equipment, the nature of the job would no longer be the same and therefore the class standard would not have described the job accurately in a material way. on the other hand, there may be instances where the purpose remains constant, but the technology affects the employees' functions in such a way that the employee must acquire new skills and abilities or must perform different duties. The duties or functions that the employee performs must be substantially or qualitatively different so as constitute a different job,for an employee to be reclassified. The standards must no longer accurately reflect the employee's job. In Re Wilson Concrete Products Ltd. and United Cement, Lime and Gypsum Workers, Local 424, 3 L.A.C. (2d) 32 (Weatherill) the purpose o~ the job did not change when the employer introduced a new type of crane to be operated by the yard crane operator. The board did not rest its decision on the purpose of the position but considered whether the new equipment changed the grievors duties. Where the grievors were performing essentially the same duties, the introduction of new equipment did not create a new job. Arbitrator Weatherill states at p. 34: The determination of the content of any particular job classification is to be made having regard to the whole of an employee's work in that classification. In some industrial plants where the whole of an employee's time is spent operating a particular machine, and where the job is described in terms of [operating a particular machine], then it might be that the introduction of a new machine is equivalent to the introduction of a new job. Where, however, a job is described in terms of the performance of certain general tasks, then a change in the equipment with which those tasks are performed does not necessarily constitute either a substantial change in the job or a creation of a new job. Technology can change the skill and knowledge level to perform a job in such a way or to such a degree that reclassification is necessary. An important indicator is whether new skills are~required to perform the work. In some cases, when computers are introduced to the job, the operator must develop an indepth knowledge of the computer, and an expertise in order to make the appropriate selections. In this case the task is not more complicated than the original task, and does not draw upon different skills. Although reading the selection is required to make the appropriate selection, reading in this case does not create a distinction between a manual task requiring no literacy and a task that requires literacy. A Traffic Technician 3 must Page 10 have a grade ten education and preferaDly a grade twelve education. Therefore the Traffic Technician 3 must be able to read and use deductive skills. The grievors did not have to develop new skills or an expertise to perform their jobs. In order to operate the Golden Retriever, the grievors admitted that it would take an average person approximately one hour to learn how to input data and approximately two weeks for an average person to learn all facets of the counting procedures and safety factors. Although, two of the grievors took computer courses, they admitted that they did not need the computer courses to do their job. Downloading information by means of a telephone modem is not quantitatively nor qualitatively significant so as to bring Mr. Westover's position outside the class standard. The ability to use computerized equipment in this case merely flows from the skills and abilities that the grievors had to have for the position. The equipment is more sophisticated, but the functions that the grievors performed were not. In principle, the situation is not very different from OPSEU(Atkinson et al) and The Crown in Right of Ontario( Ministry of the attorney ~eneral) G.S.B. #173/88 (Emrich). In Atkinson, the grievors were court stenographers. The grievors no longer used stenograph machines that produced a stenotype notes for transcription, but recorded the evidence on floppy disks for use with a computer. The board held that the introduction of the computer-assisted computers enabled the same work to be produced more efficiently, with significant improvements in the volume and pace of transcripts, but the board did not find that equipment changed the nature of the work performed as described in the Position Description and Class Standard.' In this case, as in the Sovereign decision and the Re Wilson Concrete decision, the purpose of the grievors' jobs did not change with the introduction of thenew equipment. The class Page I i standard for the Traffic Technician 3 describes the purpose of the class in broad terms. "This class covers positions of fully trained employees engaged in traffic field surveys." The class standard further states that the employees: "conduct traffic surveys ass complicated vehicle movement patterns at high volume locations, "spot speed" and "speed and delay" surveys, driver behaviour and vehicular performance surveys." The grievors' jobs clearly fit into this description. The class standard also described equipment used in broad terms by referring to both mechanical and electrical equipment, which thereby includes the electronic counters that were introduced to this job. We find that not only is the equipment included in the class standard, and the purpose accurately describes the purpose of the grievors jobs, but the functions and duties that the grievors perform remain the same. The grievors continue to take instructions from their supervisor and attend at the sites to input the nature of the study into the equipment and to retrieve information. In the broadest sense, the grievors still collect traffic data on vehicle movement at high volume locations, record the data and transmit the information to the traffic office. The grievors perform these duties in the same way. The process that the grievors follow is the same. Although the new equipment is more sophisticated and is capable of computing more information, the methodology which the grievors used was not more sophisticated than the methodology used with the earlier pieces of equipment, only their choice of options was slightly greater. Previously the grievors depressed the appropriate clicker, now the grievors have to read which selection they require and rest the cursor on the selection. Instead of choosing the appropriate clicker, the grievors choose the appropriate selection. The grievors do not create programs. Page 12 In each case, the grievors could examine data as its being collected on the field by either checking the tape or punchtape in the case of the Fischer Porter or ATR or viewing the computerized information. Although the grievors could change information manually with the mechanical clickers, if the grievors are using the Marksman 340 and the Golden Retriever, they can review each study, file by file and note an error, but cannot change the data. Similarly they cannot correct an error when they use the Electronic Gretch Board, as the information is entered into the computer's memory as it is recorded. The grievors, with the exception of Mr. Westover, take the computer to the Traffic Office for downloading. Mr. Westover has an additional function of downloading the information by connecting his computer to a telephone modem which then transfers the information to the computer in the Main Office. The only difference of any substance is, that the computer records the information that the grievors formally took down manually. Although this is a time,saving device, there is no evidence that it affected other duties or responsibilities or that the grievors took on other duties or responsibilities that were above and beyond those which described in the Position Specification and the Class Standard. Union's counsel urged us to find that the grievors have a greater responsibility as the grievors had to be accurate setting up the information. We cannot accept this proposition. There is a responsibility on the grievors to perform their tasks accurately at all times. If anything, the grievors had less responsibility with the new equipment,.as once the instructions were inputted into the computer, the computer performed the task and took away the element of error from the grievors. If an error was detected when setting our the information for the study, the memory could be cleared and wipe out the information and start over. If however, there was an error noticed during the course of Page 13 the study, that error could not be corrected. Similarly, there are fewer responsibilities to repair the equipment. If there is a rare case of the. equipment malfunctioning, the problems are noted and the equipment is sent away for repair. In summary, we are not satisfied in this case that the introduction of the computerized equipment changed the functions, skills or knowledge base required to perform the job quantitatively or qualitatively to warrant reclassification of the position. Therefore these grievances are dismissed. Dated at Toronto, this 7eh day of January, 1993. B.A. Kirkwood, Vice-Chairperson S. Urbain, Union Member D. ~alpert, Employer Member .,__, ** PeV%0 262 ~' ~ Posit[on Spe~L.~,~tlon'& C~ass AIiocMIon-CSC ~ ~ ~ ~: ~ . ~ ~. (Refer to ba~k of fo~ for ~mple~on {nstm~ions) I ~ provide a traffic da~ ~ll~l~n se~tm m~u~ vat/o~ v~ar ~ ~estri~ surveys on Provincial ~ M~ici~ ~d sys~ ~ro~ho~ ~u~ste~ Dutiel and raJit~ ~t~ (what h employ~ r~ulr~ to d~, hew end ~y? In~te ~nt~ of time lplnt ~ el~ duty] 1. ~er ~e general s~islon ?f ~ Tr~ftc Field Su~/sor, m~u~ varto~ v~m~r 0% · p~a~z~s pro~ ~ety pr~dures r~r~ ~or tr~fJc= surv~ ~rk on o~erves, cl~s[fles ~ r~.rds vehi~ar ~ ~~ ~v~n~ at ' pre. res rela~ survey re~.. skews ~ ~ra~ ~ 'revl~ ~ 2. ~r ~ 9ener~ s~saon of ~e s~so~, ~es ~rge of a ~rk cr~ ]0% pre. res site in ~tderat.ion of traffic ~/t/ons ~ i~s traffic ~fe~ ~vi~s to ~ure ~fet~' of s~f ~ v~ar trifle ~fore ~ci~ ~rk true, v~, sign ~railer, etc. '*~' res~ns~ble' ior ~nlstratzon' ' of ~s ~ a~~on ~ gener~ ~ace of E. M~,yo~, Tr~f~c ~ield S~/sbr G.' 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