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HomeMy WebLinkAbout1991-2928.Homonko.93-08-10 O~ARIO( r ' EMPLOYES DE LA COURONNE C"' CROWN EMPLG' --ES DE L'ONTARIO GRIEVANCE C,OMMISSION DE I / SETTLEMENT REGLEMENT , BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, M5G 1Z8 TELEF'HOtqE/Tr~L~PHONE: (416j 326-~'388 180, RUE DUNDAS OUEST, BUREAU 2700, TORONTO (ONTARJO.L M5G 1Z8 FACSIM.~£E/T£L~COP)E : (4 '/6) 32~.~ '1396 2928/91 IN THE MATTER'OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Homonko) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE: R. Verity Vice-Chairperson E. Seymour Member F. Collict Member FOR THE J. Monger UNION Counsel Gowling, Strathy & Henderson Barristers & solicitors FOR THE J. Lewis EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING January 27, 1993 June 1, 2, 1993 2 DECISION The grievor, Leo Homonko, has worked in the position of carpenter foreman in the Ministry's Thunder Bay district for 11 years. In a grievance dated January 15, 1992, he alleges that he is improperly classified as "maintenance carpenter, foreman". He seeks "a ~ Order" requiring the Ministry to reclassify his position. The grievor claims his actual duties exceed those anticiPated- by the class standard and that he performs his job with a degree of autonomy which is beyond the standard. The grievor acknowledges that his actual duties and responsibilities are accurately described in the position specification and class allocation form (Exhibit 2)-. That form reads, in material parts, as follows: 2. Purposes ~ I'ositi~n To ~rvise ell carpentry work in the District mhd to perform ;ar~try duties relat~ to ~he ~oti~, =internee, ~lteration a~ r~ir of f~ciliti~ within t~ distriot. U~er the g~er.l direction of t~e.$,rvices Supervisor, res~$ible for: 1. ~upervi,es the car~ntry fun~ti~ with in th~ district ~: - planni~ the ~ily ~eratim of the cr~, ~ch~li~ ~ a~o~ti~ wrk to the cr~ ~ the ~is of ins~cti~s r~utr~, ~rk o~rs a~ instructi~s f~ the su~rvi~r; - instructing su~rdinstes ~ revt~in~ ~rk ~e f~r ~r~ce to acc~t~ plans and sta~ard~; - ~suring ~he ~fe~y'of ~he ~r~lace in accordance to ~rr~ Health and ~fet~ s~a~rds; 3 - .checking/signing eapLoyee and equipa~nt time aheets, expense accounts, and arranging for overtime and ti~ off; - advising supervisor of situations that might require disciplinary action. 2. Perfor.s adainistrative related functions such as: - de~eLoping basic annual ~ork plan for further refinement and approval 'of supervi asr; -. developing sketches and ~orking dra~ings for approval; arranging for staff, materials and equipment; authorizing aateriaL purchases and hired equipment; estia~ting, ordertng and ~aintaining records of materials received and used; - advising supervisor on technical considerations related to proposed projects and ~rk in progress. Perfor~ carpentry duties or assists crew in the day to day activities by: - constructing cupboards, Shelves and other furniture; framing buildings, partitions end scaffolding; installing ceilings, dr)Mall e~cl Loading ram~s; foraing, pouring and Levelling concrete for foundation floors, installing. reinforcing steel, laying bricks and erecting concrete block ~elLs; constructing vooden sign stands and brackets, truck racks, tool boxes,. packing crates, etc.; - maintaining/ altering and repairing facilities by shingling roofs, repairing ~aLt sheds and domes, repairing/replacing hard,are such as Locks, h~nges and glass, undertaking sheet metal uork, carrying out trailer renovations, installing and repairing plumbing systess and related equipment, renovating .b~iLdfng interiors, etc. Performs other related duties as assigned such as operating services vehicles used for the transportation of tools, materials and staff, etc. Sl~LLs and kn~L~ required to perfor~ job at full vorking Level poosesaion of a certificate of queLif~catlon in carpentry, fro= the #inistry of Skills Oevelopaent. Possession of a valid CLass "G" Ontario I)river's Licence and an HTO operator's permit. Oemonstrated supervisory, organizational and planning skills. C-sad oral and writte~ communication skills. Skills to prepare esti~tes and to read and interpret plans and specifications. Good ~orking knowledge of tools, equipment, methods and practices of the carpentry trade, Knowledge of job-related occupational health and safety requireaents. HanuaL dexterity with the'ability to ~ork under .various weather condition, s and at heights. Physical capability to perform required duties. According to the grievor, he spends 75% of his time performing duty 3, while the remaining 25% is equally divided between duties 1 and 2. The grievor supervises journeymen carpenters and, where funding permits, some three or four "summer help". The three person carpentry crew services the carpentry needs of 19 district patrols as well~ as the district sign crew, the bridge crew, the zone painting crew, the electrical crew and the geotechnical crew. According to the grievor's evidence, approximately 80% of the work of a carpentry crew is involved in maintenance duties. The crew performs some new construction such as storage buildings, high capacity salt sheds, radio buildings, general buildings, and loader garages. The grievor's supervisor is Services Supervisor Scott McCallum who was trained as a traffic analyst and not as.journeyman carpenter.. The grievor testified that 75% of his job involves practical carpentry work. He stated that he undertakes an annual district review of patrols and sub-patrols to determine maintenance needs, and that he writes work orders for needed repairs. Mr. Homonko testified that he 'is responsible for costing of jobs in terms of dollars required and planned man hours. His evidence was to the effect that he determines the priority of most tasks to be done. For the past year and a half, Supervisor McCallum has required the grievor to prepare and submit a bi-weekly tentative work'schedule. While the grievor does receive some direct assignment of work from Supervisor McCallum, he maintains that the majority of his work is self-generated as a result of his annual review of facilities and the requests which he receives from patrol .supervisors~and crew supervisors throughout the course of the year. 5 The grievor contends that he has annual budget input and has administrative duties such as the approval of time sheets, expense accounts, scheduling and approval for overtime, and the taking of lieu days and vacations by the crew. In addition, the grievor testified that he is required to requisition supplies and to maintain the District's inventory of materials. The thrust of the grieVor's evidence is that he decides what carpentry workis to be done and when it is.to be done. The preamble and class standard in question read as follows: Prea~Le ALt~h the. w~)rk in the field is not precL~, most of the ~siti~s aLLo~at~ to these ~a~s~ involve ~int~nce ~rk on~ ~n or a~t a ~vern~t institution~ ~ldi~, on f~e~d office or ot~en establ~sh~t or its as~ociat~ ~ui~t, S~ ~siti~s ~y also involw c~structi~, or a~t~ra~ to ~truotures or th~ instal~ati~ of n~ ~ervices or ~uip~en~, ~st of these classes are gr~ in ~ leve~s~ i.e~ J~rney~n a~ Fore~n~ with ~vision fon ~siti~s ~er~ ~ ~ dutie~ ar~ r~uir~. , ~e ~intenanc~ ~c~an~ aer~s, ~ver, ~ist~ of f~r ~evel~: Hel~r~ I~nover, J~rn~n ~ ~int~e Fore~n. T~i~ ~eries ~ ~nt~ to oover the follow~ sit~ti~ 1. To ~rmit recruitment of e~loyees with Limit~ for~L ~u~ti~ qumlifi~ti~, ~, th~h ~ the )~ traini~ a~ experience, ~y p~ressive~y acquire the ~ge a~ ski~s ~i¢h vitL aL~ them to advice to ~;iti~a invotvi~ rare ~tex ~rk a~, ev~t~LLy, to ~rney~n ~eveL ;~iti~ p~vid~ a varney exists in an a~r~rtate ~siti~. 2. To ~ver situati~s where there ~s a r~uire~t for the sk(lls of a ~rtJcular tr~e ~t establishment of a ~iti~ in t~t ~cific trade. ). To p~vide for muHrvi~ry res~nsibikity over m variety of skiLL=, rmther t~n t~se of =~=ifi~ ~kiL~ trade. ~ese classes ~y aL~ ~ us~ to ~ver ~=iti~ invotvi~ ~rk r~uiri~ vmri= ~rees of ~nuaL =kiLL~ ~t ~t ~r~Lky as~ciat~ vith a ~cific trade~ e.g, re, ir of tri~= ~ =u~ey c~ins; re, ir a~ ~inti~ of bri~es; re, ir $~ r~finishi~ of c~s a~ ~ts; ~rati~ of ~ater a~ s~age dis~ system. In ~st ~ses~ in mt~ of these ckasse=~ to q~ify for the fore~n Level the ;;(.ti~ ~ever, the duties involve the hiri~ a~ $uHrvisim of ~ifi~ ~ocm~ tr~es~n~ ~ the =itc, for the durati~ of a specific pro~ect. Such ~siti~m ~y ~ m~kocat~ to the ~rtt~t For~n c~ass pPovidN t~t 6upervision of t~ or ~re Lo~k tr~es~ is r~uir~ for et ~east. ~ of the Forth ~sitf~s a~ ~imit~ to ~e in~t. ~re tw or ~re inGOts ~re t~ ~s~ibtLtttea of a ~siti~ ~ich ~Ld ~ ciasmifi~ at the FOrth Level if assu~ by ~e in~t ~iy, the ~siti~ ~tLL be ckasstii~ at t~ j~rn~n LeveL. Xn at~ ~aiti~s in the ~tnt~nce ~c~ntG or tr~es cLaase~ the inc~t~ ~st devote at Least ~ot their tiw to $ maintenance or skilled trades duties. Because of t~ wide rqe a~ great variety of ~tiea a~ unpredictable nature of ~ny of the ~rk projects requir~ of ~msitions allocat~ to these classes, a relatively la~e nu~r of allocations will, inevitably, be atypical to s greater or Lesser d~ree. The reas~i~ follmed in relati~ the duties of such atypical ~x3sitions to the ki~ ~ level of skills gll~ for by,.the definition of the class applied, s~Klld be grefully ~cumented in all ~uch allocations. i/here ~sitions in these cle~ses exist in an Ontario ~tospital, ~4ospitml Sc~l, Adult Occupatiorml Centre, Reformato~, Training S~l or similar institutions, the intuits ~y provid~ w~th ~tient, nesid~t, trainee on in,ts hel~rs. In all tr~es or ~sitf~s ~ere such het~rs art provi~, incurs are r~uir~ to ~u~rvise, guide a~ ~n~truct their eesign~ hel~rs at~i~ to their g~bilities ~ ~ra~nt a~, ~ far as i~ ~sible, to break ~n the ~r~ ~nto tasks their hel~rs are g~b~e of perfor~i~. ~is su~rvisi~ of ~ti~t, re~id~t, t~ainee or ingle het~rs ~s ~ grr~t alLogti~ to the FOrth intuits of a ~siti~ or ~tti~s olassifi~ in a j~rnt~ tr~e~ ~tas~ ~st ~ su~rvi~ to warrant the Fort~ ~I~: I~ s~ ~s~s~ ~ o~ the ~u~es ~vo~va ~ O~r~ of the ski~ associ~t~ with ~e or ~re of the skilt~ tr~es. ~evar, the appLi~ti~ of ~u~ skills or rest~ict~ to a ~rativety ~r~ s~cialty o~ the ~iti~ also involves the use of s~cializ~ ~ui~nt. Such ~siti~s are cove~ by s~ciat classes or class series such as: Agricultural ~rke~; Electrics Tec~ici~; Electrics S~ir~n; Hi,ay Equicor ~eraton; Linen; Sign Painter; ~en etc., a~ are excL~ fr~ the ~in~e~nce Tr~e C~asses. _RAZNTENANCE CARPENTER. FORERAN ' CLASS DEFZIJZTIOfl: Positions allocate~ to this CLass ~nvolve the s~rvisi~ of at Least t~ ~r~es~, e~Loy~ at the j~rne~n te~(, in t~ skiL(~ ~int~nce ~rk retat~ to the ~structi~/ g~eraL upke~ a~ re, ir of g~en s~ructures, fitt1~s, ~ui~ e~c., at · ~rn~t ~itdi~, Institution or other estabLish~t. ~e ~Loyee, in ~siti~s in this class, is giv~ g~erat assign~ts by his su~nvi~r a~ is r~ir~ to ~ke est1~es of ~teriaLs, p~ and ~ay ~ the ~nk a~ su~rvise it to ~le~i~ ac~i~ to acc~t~ ~t~s in the mr~try tr~e. He determines ~rk ~th~s ~ mke~ ~ri~ic ~nspecti~s of ~rk in profess aM of the praises in g~erat a~ ~co~s grp~try rpirs where necesgry. In ~e.~siti~s the hini~ e~ s~envision o~ local tr~e~ ~ the si~e of tartary projects is ~n~lv~. ~e ~rk i~ subject ~o re~i~ for gtisfactory quality a~ c~Liance with directi~s or with plans a~ s~cifigti~s. ~ese ~loyees gy th~elves perfor~ any of ~he d~its of a ~Jnt~nce Carpenter. ~ my also ~rform other tasks of a relatH nature ~t at last ~% of their ti~ ~st ~ d~o~ to ~rk invotvi~ grp~try or the tu~rvis1~ of grpenters. In additi~ to j~rney~n trades~ they ~ supervise unski~L~ or seai-skiL~ e~ployees a~ ~tient/ resident, trains or ingle heL~s. . U~er directly, the e~Loyee in ~si~i~s in this ~Lass is r~uirH to p~an, Lay ~t, supervise a~ tnspect a~t ~rpentry/ joining, ~rki~ a~ =bintt ~king work prfor~ by j~rneygn gr~nters, other ~rkers, ~tifit, residfit, trainee or inmte he~r~, at the estab~i~t c~cernH. He ~y also be r~uir~ to insect a~ re~rt ~ the ~rk of ~tside c~tracti~ firms. ~is ~oye su~i~es ~ ins~c~ r~irs ~M alterati~s to the interior ~ exterior ~nk of ~vennm~t ~itdi~s, instituti~s or establishm~ts a~ relatH structures such as staff ~ses, gerbes, ~rks~s, ~s, ~rns, etc.; a~ the ~structi~ or repir of' ~ articles, ~u~pgnt or ~rts within or a~t the ~Jldi~5. In ~ ~sitions the intuit su~rvises ~ assists tn the c~struct~, mint~nce a~ aL~erati~ of ~ts, ~s, ~bin~, aircraft ~kis, ~tr cabins a~ ~ngan ~ui~t or in ~he p~ucti~ of exhibits a~ displays. ~ese e~loy~s assis~ a~ c~rate with other for~, tr~es~ a~ n~-trades staff. ~IFIUTI~: 1. Preferably tec~icat sc~l ~ucati~; ~[eti~ of. the re~nizH a~r~tlceship in the grp~try or ~ioet ~ trade a~ certifi~t~ by the De~r~t of ~r; t or arc,table ~uival~t c~i~tion of traini~ a~ ~erience; ~ ~rkt~ ~lHge of the t~ls, ~ui~t, =t~s ~ practices of t~ gritty or c~inet gkJ~ tr~es. At Least five years' acceptsbLe experience ms a carpenter. Supervisory and Instructional ability; abttity to Lay out Work assignments from plans and. 'specifications; good physical condition. * Where the equiveLent applies, the spplicsnt wi k k be required to successfully complete a Ctvtl Service Trades Test. District Human Resources Consultant Phil Cooke testified for the employer. Mr; Cooke gave evidence as to his view of the difference between general supervision, direction, and general direction. An extract from a government publication on position administration, dated February 1964, defined the terms as follows: r~ne~m L Su~ervisim: The employee works with considerable functional independence, as in many "journeyman" Level clerical, technical and professi~L positions. He completes most assignments without referral to his supervisor, exeecising judgment and making appropriate technical decisions/ based on a good Icn<)~Ledge of methods/ procedures and precedents. The supervisoe ia not concerned with ~ork details, but may make infrequent spot-checks. Employee performance~ is evaluated' Largely in terms of difficulties resulting from poor work or non- production. The employee has been directed to achieve.a definite goal and establishes his o~n methods and ~ork procedures, deciding manpower and material requirements to achieve program ~bjectives and recommending their acquisition. Norma(Ly he plans/ oeganizea and controls the work of subordinate personnel. While employee ia held accountable for carrying out certain organizational objectives/ he should not make decisions ~hich afl'ecl policy. The supervisor does not provide technical instrqction. Employee performance and effectiveness is evaluated basically in terms of results, through a process of inspection and review. 6metal Direction: A senior official is held accountable by management for accomplishing departmental objectives, expressed in teaistation, reguLations or general policy directives. I~e is expected to make dacisions tn accordance wt:h estabLished poLicy, and usually participates in formulating that policy.' The crux of the union's case is that the grievor has been · allowed to perform tasks autonomously with little or no supervisory input, and that the supervisor has delegated most of the assignment 'of duties directly to the grievor. In support, the union cited the following authorities: OPSEU (Beach) and Ministry of the Environment, 816/86 (Fisher); OPSEU (Cardno et al) and Ministry of khe Environment, 530/88 %Stewart); OPSEU (Rudder) and Ministry of Health, 402/88 (Gorsky); OPSEU (Dunning) and MinistrY. of Transportation, 1574/88 (Gorsky); OPSEU (Ouan) and Ministry of Labour, 1330/89 (Knopf); and 0PSEU (D. W. Canninq et al) Land Ministry of Government Services, 558/84 (Samuels). The empl. oyer argued that all work performed by the grievor is encompassed in the class, standard and therefore he is properly classified. Counsel for the employer contended that although the grievor was not supervised on a daily basis, much of the work was routine and that all construction projects were given to the griev0r by his supervisor. The panel was referred to the following authorities: OPSEU (Ethier) and Ministry of Transportation, 889/91 (Kirkwood); OPSEU (Aird et al) and Ministry of COnsumer and Commercial Relations, 1349/87 (Slone); OPSEU (O'Neill) and Ministry of Natural Resources, 1526/87 (Dissanayake);. OPSEU (Larmand) and Ministry of Transportation, 887/86 (Fisher); OPSEU (Johnston) and Ministry of TransDortatioq, 1838/89 (Verity); and OPSEU (ROY) and Ministry of Natural Resources, 946/89 (Knopf). Class standard, unlike job descriptions, are broadly framed statements. intended to serve 'as a general outline of duties and responsibilities contemplated. We adopt the rationale of Vice- Chairperson Slone in the Aird case, supra, where he states at p. 8- 9 9: ... the addition of ne~ duties may take a jo~ o~t 6f its original ctassificatio~, bet only uhere those duties are of such a kind or occur in a degree es to amount to a different job attogether. Sea for example Be[(luin and Lyre, GSl~ 539/84 (PeLmer) and ,Fenske, GSB 494/85 (Verity). As these and other cases shou, the propriety of the classification is a factual issue to be decided on the merits of each case .... The enus is on the grtevor to show that he is actually performing s Job, the essence or core duties of which do not fit within the crass standard to which it has been as&igned by the employer .... In the instant grievance, the core duties of the grievor's job fit squarely within the maintenance 'carpenter, foreman class standard. We are satisfied that all work performed by the grievor is in direct support of the core duties of the carpenter foreman's position. The grievor's input into the budgetary process, which is not contemplated by the class standard, is minimal. ~, Eighty percent of the grievor's actual duties and responsibilities involve carpentry maintenance. The evidence establishes that the maintenance responsibilities as outlined in the annual work plans are basically the same format from year to year. Of particular significance is the-annual maintenance and repair to sand domes And salt sheds. The three elements of the relevant class standard as summarized by V-C Fisher in OPSEU (Larmand) and Ministry of Transportation, supra, apply in this case; namely, (1) There must be supervision of at least two persons; 10 (2) These two persons must either be journeyman, that is skilled labour in the relevant trade class or qualified local tradesman; and (3) Supervision of either journeyman and/or tradesman must cover at least 60% of the year. Clearly, the grievor is a competent employee who has held the position of carpenter foreman for the past 11 years. It is understandable, we think, that'the grievor has been giuen the level of autonomy that he has to plan, organize and direct the carpentry crew. He is required, however, to submit a written bi-weekly work sChedule to Supervisor McCallum. In our view, it does not assist the grievor that most of his assignments are either self-generated or come from patrol or crew supervisors. The evidence establishes that the grievor's work schedule does not vary to any significant degree from year to year. The grievor agreed that Supervisor McCallum always reviews his sketches and working drawings and is on-site to inspect all new construction projects. The grievor also .agrees that Supervisor McCallum applies for building permits and land use permits where required. Although the grievor is given a significant degree of autonomy by his supervisor, it cannot be said that he works without supervision. On the evidence, w~ must' conclude that the grievor works under general supervision and direction. We find that the grievor is currently properly classified as 11 maintenance carpenter foreman. In the result, this grievance is dismissed- DATED at Brantford, Ontario, this 10th of August, 1993. R. L . %~RiTY, Q.C. _ VIC~-CHAIRPEBSON E. SSYMOUR - MEMBER