HomeMy WebLinkAbout1991-1652.Flood.93-07-09 · · * ....... ONTARIO EMPL OYES DE LA COURONNE
~, '~ ' " :',..," :~,/.';.;' '~:'i" i..'. CROWNEMPLOYEE~ DEL'ONTARiO
'~ - ':':': ~'~'~'~' ~ :'" ?" GRIEVANCE C,OMMISSION DE
· ~I l SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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1652/91
IN THE MATTER OF AN ARBITRATION
Under'
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE ~RIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Flood)
~rievor
- - and-
The Crown in Right of Ontario
(Ministry of Transportation)
Employer
BEFORE R. verity Vice-Chairperson
· J. Carruthers Member
D. Montrose Member
FOR THE L. Harmer
GRIEVOR Counsel
Gowling, Strathy & Henderson
Barristers & solicitors
FOR THE M. Failes
RESPONDENT Counsel
Winkler, Filion & Wakely
· Barristers & Solicitors
HEARING MaY 15, 1992
July 9, 1992
March 29, 1993
2
DECISION
Sherry Flood has worked as PatrOl Forewoman in the TRITOWN
Patrol (New Liskeard, HaileYbury and Cobalt) in the Ministry's New
Liskeard Di'strict. In a grievance da~ed June 12, 1991, Ms. Flood
alleges that she is improperly classified as Highway General
Foreman 1 and seeks a Berry order.
During her seven year employment with the Ministry, Ms. Flood
has successively held the classifications of Equipment Operator 1,
2 and 3, and Highway General Foreman 1. Ms. Flood has been
classified as Highway General Foreman 1 since July 1990. She
testified at some length as to her current duties and
responsibilities 'as'Patrol Forewoman. The grievor acknowledges
that her job is accurately described in a Position. Specification
and. Class Allocation form dated June 1990. In fact, the grievor
testified that the only task that is not set out in the position
specification form is her work in assisting her Patrol supervisor
in the annual budget process. The Position Specification form
reads, in relevant parts, as follows:
Purpose of position
To provide leadership to Patrol Maintenance Workers on
assigned shifts and to participate in the daily work
activities of equipment operating, labouring and
administrative duties required for highway right-of-way and
highway facility maintenance within a designated geographic
area of a District.
3
Duties &nd related tasks
Under general supervision of the Patrol Supervisor as a
working foreman/womao, the incu~ent:
1. Provides leadership to Patrol Maintenance Workers on
assigned shifts by:
- performing duties of shift foreman/woman during the
winter maintenance season for assigned, shift
schedule;
- assisting supervisor in/or completing as directed
the organizing and planning of work to be carried
out on a daily/weekly basis;
- assigning work and arranging for appropriate
material, equipment and staff;
- overseeing work in progress, providing guidance and
directio~'on safe and efficient work pradtices and
procedures, and in accordance with Ministry
standards;
- training and instructing staff in the operation of .
vehicles and equipment, and maintenance activities
including related safety techniques, methods and
procedures;
- inspecting work performed by contractors' for
compliance to standards and contractual agreement,
advising contractor of deficiencies and reporting
on performance %o supervisor;
- provides information to the Patrol SuPervisor on
such matters as staff work performance, training
needs, discipline, vacation scheduling and overtime
as requested.
2. Performs administrative activities in accordance with
Ministry procedures by:
- completing, reviewing and maintaining a variety of
records, covering work activities related to
equipment operation and maintenance, hours of work,
and material usage (eg. daily inspection books,
timesheets, expense forms and reports on sand and
salt usage/vehicle accidents/personal injury, etc.)
- assisting in the .preparation and the ongoing
monitoring of the annual work plan;
~ patrolling roads as assigned and reporting hazards
and/or deficiencies;
- liaising with property owners, the general public
.and individuals from organizations such as police,
4
municipal and other Ontario Government Ministries,
Utility Companies to exchange information, promote
and maintain good public relations and as
applicable, ensure compliance with Ministry
requirements.
3. Operates vehicles and equipment and performs required
maintenance on same by:
- operates vehicles and mobile equipment to transport
staff, material and equipment to carry out road
resurfacing and right-of-way maintenance and
repair; to carry out snow and ice removal
activities, etc.;
- performs daily circle checks of equipment and
'.performs routine maintenance., on vehicles and
equipmen~ as required.
4. Performs a variety of labouring tasks, such as:
- installing, repairing and maintaining signs,
guiderails, fences, catchbasins, ditches, cul.verts,
etc.;
- removing accident .site debris and dead animals,
clearing beaver dams and cleaning up spills;
- cutting and removing brush, trees, grass and weeds;
- spray patching and patching with hot and cold
asphalt mixes,~ and filling cracks on highway
surfaces;
- applying dust suppressants such as calcium chloride
on gravel roads;
- carrying out janitorial services at headquarters
and picnic sites such as cleaning and repairing
tools, buildings and facilities;
- flagging traffic to warn motorists of work in
progress.
5. Performs related duties such as:
- .acting for supervisor during absences;
- compiling and recording information for the Highway
and Road Inventory (eg. number of entrances,
bridges, kilometres of road mowable hectares, etc,)
- investigating, reporting on and when possible,
resolving complaints from the public and others;
- as assigned.
Skills and knowledge required to perform job at full working
level
Valid Ontario Class "DZ" Driver"~ licence with an acceptable
driving record and MTO Operator's Permit. Good skill and
knowledge to operate and maintain various types of vehicles
and equipment used in road maintenance and construction
activities. Successful completing of training in Defensive
Driving, traffic methods, fir'st aid, transportation of
dangerous goods, WHMIS, and job related aspects of
Occupational Health and Safety. Good knowledge and
understanding of the Maintenance Management Information
System. Sound working knowledge of summer and winter
maintenance operations and related Maintenance Quality
standards, as well as the Occupational Health and Safety Act
as it relates to maintenance activities. Good working
knowledge of maintenance and maintenance related contracts and
agreements. Good skills in leadership and communication.
Ability to prepare- and maintain, neat accurate records.
Physical capability to perform required duties.
In both the summer and winter seasons, the grievor reports to
Patrol Supervisor'Tom Greenwood. Briefly stated, during the summer
season; the grievor supervises four equipment operators and several
contract employees (where funding is available) in the performance
of a variety of highway maintenance duties. In the ~inter, the
grievor performs Shift Forewoman duties by supervising three to
four emploYees in plowing, sanding and patrolling the roads. The
gri~vor's evidence was to the effect that while She did not
normally'perform as a special jobs foreman, she did work as Guide
Rail Special Job Foreman in the summer of 1992. The grievor
testified that she performed additional duties that were not
contemplated by the class standards including: training staff in
the operation of vehicles and equipment; interacting with and
inspecting, the work of outside contractors; liaising with the
6
general public and With personnel from the public utilities
commission, Ministry of Natural Resources and Ministry' ofp the
Environment; hiring unclassified empl6yees; assuming the duties Of
her supervisor in his absence for eight weeks in the summer season
and 40% of the time during the winter season; and participating
with her supervisor in the budgetary process, the annual road
inventory account and the scheduling Of work.
New Liskeard Maintenance Supervisor Mickey Major testified for
the employer. According to his evidence, there are six employees
in the TRITOWN Patrol including the grievor and Patrol Supervisor
Tom Greenwood. He testified that the grie~or had no authority to _
discipiine employees, no authority to prepare time sheets or
expense'claims, no authority to formalize vacation schedules or to
attend grievance meetings or bi-weekly supervisors' meetings. He
did acknowledge, however, that the grievor may have been involved
in hiring unclassified staff and may have participated to some
degree in the budgetary planning process.
The relevant provisions of the class standard for Highway
General Foreman 1 read:
This class covers..positions of employees who supervise the
day-to-day activities of sub-foremen, equipment operators and
manual workers, engaged in repairing roads, bridges, fences,
culverts and other construction or maintenance projects within
a District.
Projects assigned are expected to. be completed without
detailed reference to supervisor. They estimate and arrange
for materials and equipment required for each job; arrange for
staff and assign them to various projects. They check time
records and prepare reports on ~ork progress, expenditures,
vehicle operations costs and material usage.·
As a special jobs foreman, they supervise work crew(s) engaged
in a variety of maintenance tasks such as pavement patching,
surface treating, priming, cl%aring and grubbing, fence
erection, culvert replacement, guide rail installation, minor
bridge repairs etc.; they may perform inspection duties where
such work is done by contract. They may supervise a Segment
of a major day labour project under the direction Of a Highway
General Foreman 2.
The thrust of the Union's argument is that the grievor
performs a significant number of additional duties that extend
beyond what is envisaged by the class standard. In support, the
Union referred to the following authorities: OPSEU (Beach) and
Ministry of the Environment, 816/86, (Fisher); OPSEU (Avsec) and
Ministry of ~ousing, 1589/89,~ (Low); OPSEU (Campsall) and Ministry
of Transportation, 890/91, (Knopf); OPSEU (Dunning) and Ministry of
TransDortation, 1574/88, (Gorsky); and OPSEU (Hansen 'et al) and
Ministry of Community & Social Services), 2409/90, (Keller).
The Employer argues that the class standard is sufficiently
broad to encompass all tasks currently performed by the grievor.
Mr. Failes ·relies upon the rationale of V.C. Kaplan in OPSEU
(Fortier) and Ministry of Transportation, 420/92, which involved an
identical Claim of misclaSsification as Highway General Foreman 1
in the Timmins patrol of the New Liskeard district. The following
additional authorities were submitted: OPSEU (Aird) and Ministry
8
of Consumer and Commercial Relations, 1349/87, (Slone); OPSEU
(Smith) and Ministry of Transportation, 1203/90, (Kaplan); OPSEU
(Brooks/Whitney) and Ministry of ~Health, 1816/90, 1817/90,
(Dissanayake); and OPSEU (Evans) and Ministry of Transportation,
1531/90~ (Samuels).
The class standard of Highway General Foreman 1 has remained
Unchanged since 1966~ It is 'fair to say that the class standard in
question was designed, to have broad application to a variety of
positions. There are four ~ategories to which the classification
Highway General Foreman is meant to apply; namely, supervision of
employees engaged in 1) the' repair of roads, bridges, fences,
culverts and other maintenance projects, 2) specialized maintenance
operations within a District, 3) repair or construction of roads
and bridges and 4) Tree Saver Crews.
Class standards are not job descriptions. Rather, they are
broadly worded statements intended to constitute a general outline
of duties and responsibilities.. We would adopt the rationale of
V.C. Slone in OPSEU (Aird et al), supra, where he states at p. 8:
...the addition of new duties may take a job out of its
origina! classification, but only where those duties are of
such a kind or occur in such a degree as to amount to 'a
different job altogether. See for example Baldwin and Lyn~,
GSB 539/84 (Pat~er) and Fenske, GSB 49~/85 (Verity). As these
and other cases show, the propriety of the classification is
a factual issue to be decided on the merits of each case ....
9
In the instant matter, we are persuaded that the grievor
performs work that is indeed contemplated by the class standard.
?he facts of the instant grievance~ are similar, although not
identical~, to the facts of the Fortier case. While it may be said
that Ms. Flood's case is stronger than'that of the grievor Fortier
in the sense that she would appear to have greater liaison duties
and does participate in the. budgetary process, we are satisfied
that the vast majority of Ms. Flood's actual duties' and
responsibilities fall squarely within the Highway General Foreman
1 class standard. On the evidence, it is apparent that the grievor
is an excellent employee who has developed a close working
relationship with her patrol supervisor.
In our view; the final paragraph of the Kaplan decision in
Fortier applies with equal force to the facts of the grievance
before us. At p. 15 of the decision in Fortier, V.C. Kaplan
states:
Insofar as the grievor performs certain duties not
contemplated by the class standard, such as liaison with the
public, the City of Timmins and other agencies and
institutions such as the utilities or the annual Highway Road
Inventory, we find that this work is in direct support of his
core duties, and is not in any event of such a nature or
quality to take him beyond his class standard.
In our view, Ms. Flood's participation in the 'budgetary
process, although not contemplated by the class standard, is not
sufficient in itself to justify the claim for reclassification.
10
In the result, we must find that the gr~evor is currently
properly classified as Highway General'Foreman 1. Accordingly, th~
grievance is dismissed.
DATED at Brantford, Ontario, this Otb day of July 1993.
R; L. VERITY, Q.C. -VICE-CHAIRPERSON