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HomeMy WebLinkAbout1992-0420.Fortier.93-01-19 - r" If-. -- ~ - ONTARIO EMPLOYES DE LA COURONNE ,!''''1;. CROWN EMPLOYEES DE L'ONTARIO I, II_GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES: GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO, ONTARIO, M5e. lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416) 326-1396 420/92 IN THE MATTER OF AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Fortier) Grievor - and - The Crown in Right of ontario (Ministry of Transportation) Employer BEFORE: W. Kaplan Vice-Chairperson J. Carruthers Member M. O'Toole Member FOR THE J. Monger ONION Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D. Jarvis EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING December 16, 22, 1992 ~ 2 . ..-r ~7 I " Introduction By a grievance dated April 18, 1992, Robert Fortier, a Ministry of Transportation employee classified as a Highway General Foreman 1, grieves that he is improperly classified and seeks a Berry Order The case proceeded to a hearing in Toronto, at which time both evidence and argument were heard It is useful to set out the relevant parts of the grievor's class standard HIGHWAY GENERAL FOREMAN/WOMAN CLASS DEFINITION This class covers positions of employees who supervise the day-to-day activities of sub-foremen/women, 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 work progress, expenditures, vehicle operation costs and material usage In brief, it was the union's position that the grievor's duties and responsibilities and level of independent judgement and accountability greatly exceeded those contemplated by his class standard In particular, it " 3 ~ . was the union's position that the grievor's duties included training and instructing employees in the operation of vehicles and equipment, safety techniques and documentation procedures, liaison with the public and other ministries, acting for the supervisor in his absence, and participating in the annual Highway Road Inventory Moreover, the union took the position that the grievor, on average, spent two days a week doing his supervisor's job as well as one month each summer while his supervisor went away on holiday The employer took the position thai! the grievor was properly classified The grievor gave evidence on his own behalf, and was, in fact, the only witness in these proceedings The Evidence Robert Fortier's career with the Ministry began in 1975, and he became a Highway General Foreman several years ago Mr Fortier works at the Timmins Patrol, which is one one of 14 patrols in the New Liskeard District responsible for highway maintenance The Timmins Patrol is an intermediate patrol responsible for maintaining six highways, six cottage roads, two dump roads, and one specialized road for the Ministry of Natural Resources The number of employees assigned to the TimminS Patrol fluctuates. In general, there are eight employees during the summer and thirteen in the winter Winter highway maintenance is also carried out by contract employees. In the summer, Mr Fortier and the other employees work on signs and guard rails, they post cables, and repair culverts and road shoulders In the winter, employees plow, sand, maintain equipment, patch, and repair signs and culverts .. 4 . ~ - I The Patrol Supervisor is Mr Peter Yaremovicz. The grievor reports to Mr ~ Yaremovicz, and is his second-in-command, referred to as "2IC." Other Patrol Foremen work in the Timmins Patrol, and they report to the grievor Mr Yaremovicz reports to Mr Terry Gaudon, who is the Maintenance Supervisor in New Liskeard The Qrievor testified generally about some of his duties and responsibilities He has trained and instructed staff in the operation of a gravel truck and the workings of a grader Ms. Carol Joiner was one of the employees that the grievor trained She was a seasonal employee working on a special program, and the grievor initially trained her for approximately three or four days, and then trained her intermittently over the summer The grievor also instructed Carl Weaver in the use of the grader and George Straatman on the loader While the Ministry employs an equipment instructor, he is extremely busy and is also located 200 kilometers away in New Liskeard, and this is one of the reasons why the grievor is called upon to do some training Mr Fortier also conducts some training with respect to safety techniques and procedures, including traffic control While employees receive lessons on this in the office, the grievor provides actual instruction in road flagging and other safety procedures. Mr Fortier was not aware of his supervisor doing any training. While there are some memos in the office which employees are to read, the actual training is out on the road, and with the exception of crash courses in fire extinguishers and chain saws, Mr Fortier conducts this training, as outlined above. -.-- -(. 5 - . Mr Fortier also trains staff with respect to office paperwork. While his " supervisor is ultimately responsible for these documents, they are filled out by a clerk on Saturday while Mr Fortier is at work and while his supervisor is away Payroll is done every other Saturday, and other documents such as the Maintenance Daily Work Report, time sheets, spreader sheets, stockpile reports, and fuel and labour reports must be filled out more regularly The paperwork is heaviest in the winter, and a special clerk is hired to do this work. Mr Fortier is responsible for ensuring that all of the paperwork is done properly, and he was responsible for training the winter clerk in that work the first year that he was hired Mr Fortier has also instructed other employees in the proper filling out of documents, and from time to time he is called upon to refresh their memories in how to do so Mr Fortier is also responsible for liaison with the general public. Members of the public will call the Timmins Patrol with complaints or concerns. For example, a plow may have thrown snow up beSIde a house, or may have damaged or cracked a road. Potholes are reported and must be repaired Mr Fortier must respond to these calls by ensuring that appropriate action is taken He also responds to requests for encroachment permits, entrance permits and building permits by contacting the individual in charge in New Liskeard, arranging appointments and inspecting culverts to ensure that they have .been properly installed. Mr Fortier deals with all of these concerns in the absence of his supervisor Eighty percent of all calls received are routine', and Mr Fortier looks after them himself He refers the non-routine calls to Mr Yaremovicz If something non-routine occurs while Mr Yaremovicz is away, Mr Fortier will either take care of it or refer - - -- 6 I - it to New Liskeard. Mr Fortier gave an example of an incident that took ! place after the grievance was filed, in which he responded to a non-routine event in the absence of his supervisor This particular incident involved a washed-out road, but before conducting repairs, Mr Fortier obtained expenditure approval from another individual Mr Fortier also has contact with the police, as they report road conditions to him. Many of these calls are routine, and Mr Fortier responds to them, such as by directing a crew to spread sand. During the winter, Mr Fortier might hear from the police four or five times a week. Mr Fortier also has contact with officials in Timmins, as one of the highways he maintains runs through that city In the summer, Mr Fortier might have occasion to talk to Timmins officials five or six tImes. He receives the odd .call from them in the winter He also has COriltact with Ministry of Natural Resource Officials about their road, which the Ministry of Transportation maintains. These calls typically involve requests for road maintenance If Mr Yaremovicz is around he decides what will be done If Mr Fortier is alone, he usually makes the decision He mas contact with utility companies when his work crews are installing posts and signs. Either Mr Yaremovicz or the grievor will contact the utilities to find the locates. In the summer, Mr Fortier participates in the Highway Road Inventory Every sign, bridge, dotted line, etc, in the Timmins Patrol is counted This inventory generally takes two weeks, and it is done by the grievor and Mr Yaremovicz Some activities are dome by the two men together, while others are done separately . ~~_._._- ,I 7 ~ Mr Fortier also testified that in the summer before his grievance was filed, Mr Yaremovicz took a one-month holiday While he was away Mr Fortier I I supervised the patrol and was responsible for it. In add;ition, Mr Fortier \ testified that Mr Yaremovicz took other days off during the summer and winter During these absences Mr Fortier supervised the patrol, and also regularly did so throughout the year on Saturdays which were regular working days for him, and a regular day off for his supervisor When Mr Yaremovicz is away, the other employees look to Mr Fortier as their supervisor Mr Fortier testified that his level of responsibility increases in his supervisor's absence, and he testified that he deals directly with the Maintenance Supervisor in New Liskeard, and does the paperwork that Mr Yaremovicz would normally perform, with the assistance of the clerk. Unless he receives specific instructions from New liskeard, Mr Fortier directs the activities of the patrol in Mr Yaremovicz's absence For instance, in the winter, Mr Fortier will decide whether or not to can the contractors out. He is also responsible for work assignments, and has the discretion to grant one or two days of vacation Mr Fortier does not receive any acting pay when he performs Mr Yaremovicz's duties. In cross-examination, Mr Fortier was asked a number of questions about his supervisors absences. A Ministry document was introduced into evidence detailing Mr Yaremovicz's vacation and other lieu days in the year prior to the grievance being filed. Suffice it to say that Mr Yaremovicz was not away for one continuous month in the summer before the grievance was filed. Instead, he was away for a total of two weeks Mr Fortier was also asked about his knowledge of Mr Yaremovicz's responsibilities, and he agreed that his supervisor was responsible for a number of functions. For example, Mr Yaremovicz had the authority to grant leaves of absence for up 8 I to one week, while Mr Fortier could only do so for up to one day Mr '" Yaremovicz was responsible for preparing Performance and Planning Reviews, and Mr Fortier has never done so. Mr Yaremoviczhas the authority to discipline employees, while Mr Fortier does not. Mr Fortier could not recall, however, any need for any of the crew to be disciplined, he would, however, advise Mr Yaremov,icz of any serious incident requiring discipline Mr Fortier also agreed that he did n0t have the authority to suspend employees or sit in on grievance meetings. Mr Yaremovicz had this authority Mr Yaremovicz also had the authority to sign time sheets. Mr Fortier could fill in the amount, but could not approve them even when Mr Yaremovicz was away The same was true with respect to expense claims Mr Fortier was asked about his authority to approve one-day vacations during the winter, and he agreed that it was part of an informal practice, and he exercised that authority when no further plowing was required. The formal vacation schedule was, however, designed by his supervisor, and Mr Fortier did not participate in that activity Mr Yaremovicz approved overtime, although the grievor could' do so as well. The grievor could not, and did not, sit on selection panels for job competitions. Mr Yaremovicz did so Apart from these human resource functions, Mr Fortier agreed that his supervisor was responsible for preparing the budget for the Timmins Patrol. Mr Fortier had no involvement in that process. Nor was he involved in the tendering process for major summer maintenance work. Along with other supervisors in the district, Mr Yaremovicz attended the monthly ..-----_._....~ -- --.. -- --- - -- - i 9 ';'; supervisors' meeting Mr Fortier attended this meeting as the representative of his supervisor on one occasion. In the event of a highway fatality, Mr Yaremovicz has certain investigatory and reporting responsibilities, which Mr Fortier does not exercise. He has never, for example, prepared a fatality report, although he has done some investigatory work under general direction Mr Fortier agreed that he has never handled an emergency or non-routine event without seeking the approval of his supervisor or another supervisor Mr Fortier was asked a number of questions about his training and instruction activities He agreed that if a new piece of equipment was introduced, the equipment instructor would come and give a course apout it. The same was true with respect to the introduction of a major new safety procedure such as WHMIS. In general, however, most employees did not require much training as they had considerable experience and seniority Mr Fortier agreed that other employees assisted in providing Carol Joiner with informal training. Carl Weaver was a seasonal employee with some experience, and so he just required refresher training Mr Fortier did not know if anyone else participated in training George Straatman The first winter that Mr Straatman worked as a clerk he required more intensive training The second year it took less time Mr Fortier estimated that he was up and running within a week. Mr Fortier agreed that insofar as training about traffic control was c0ncerned, employees would have passed a test demonstrating proficiency in the rules, and that he provided the practical information out in the field as required Other safety instruction involved advising employees to wear hard hats, and so on ~ -~ 10 " ," With respect to liaison with the public and other bodies, Mr Fortier reiterated his evidence in chief, and he also agreed that the Highway Road Inventory was not a particularly difficult task. Nor were the paperwork functions. While it generally takes two years to become proficient in working a plow, and while other equir:Pment takes even longer to fully master, to become proficient at the paperwork takes much less time In re-examination, Mr Fortier testified that he could not recall an employee taking a leave of absence rather than a vacation. He told the Board that the PPR's were done yearly, and last year his took approximately ten minutes to complete He could not recall any crrew member being disciplined and could only recall one recent job competition, nor could he recall any contractors being hired for summer work in the summer previous to the filing of his grievance When Mr Yaremovicz is away, Mr Fortier typically stays in the office because there is more office work to take care of If an accident took place when Mr Yaremovicz was away, Mr Fortier would ensure that the necessary information was collected, and this information would be used by Mr Yaremovicz in the preparation of his report. Mr Fortier could not recall the last time a new piece of equipment was introduced, and he testified that sometimes employees go out in the field before they have completed their safety course, and on those occasions they require further safety instruction out on the road. The evidence having been completed, the case proceeded to argument. Union Argument Union counsel submitted that the evidence established that there was a I substantial variation between the grievor's duties and responsibilities and I I 11 " j those envisaged by the class standard In particular, counsel argued that the grievor's teaching responsibilities with respect to equipment, safety and paperwork, his participation in the annual Highway Road Inventory, and his liaison duties, none of which are mentioned in the class standard, justify the granting of a Berry Order Counsel also pointed to the fact that the grievor acted as 21C, and that he fulfilled many of his supervisor's duties while the supervisor was away - which was quite frequently given the fact that Mr Yaremovicz did not work on Saturdays and the grievor did, and given the fact that Mr Yaremovicz took considerable vacation and lieu days. In the fiscal year 1991-1992, Mr Yaremovicz was away for a total of 23 07 days. (There was no evidence before the Board as to how many of these days, if any, were on a Saturday, so there was no way of knowing how many days in total that Mr Yaremovicz was away while the grievor was at work. There was also no evidence before the Board about how many vacation and other days the grievor took off in that same period.) Counsel submitted that the class standard did not envisage employees exercising the kinds of supervisory duties exercised by Mr Fortier while his supervisor was absent. Counsel noted that the grievor's position specification provided that the grievor would act for his sup~rvisor in his absence, and argued that this significant responsibility should be recognized in the class standard given that it was one of the grievor's central duties and responsibilities Counsel cited a number of cases to the Board including Hansen et al 2409/90 (Keller), Rudder 402/88 (Gorsky),and Dunning 1574/88 (Gorsky) and argued that the grievor in the instant case was performing his supervisor's work for a considerable part of his time, and was also ready to fill in for his supervisor at any moment. In counsel's submission, the 12 grievor's additional duties and responsibilities, as well as the fact that he ^ regularly performed his supervisor's job, and the fact that this responsibility was recognized in his position specification, took him out of his class standard and justified a Berry Order Employer Argument In employer counsel's submission, everything that the grievor did was covered, directly or indirectly, by his class standard The grievor's training activities were minor, but were covered, in counsel's submission, by the opening sentence of the class standard When formal training was required, the evidence established that specialists provided it. The grievor's paperwork responsibilities, as well as his liaison responsibilities, were, counsel suggested, in support of his highway maintenance work. The grievor's duties were all routine, and where they were not, a supervisor was called in In counsel's submission, Mr Fortier's job was no different when Mr Yaremovicz was away than when he was present. Counsel argued that just because Mr Yaremovicz was absent for some indeterminate amount of time did not mean that Mr Fortier became the acting supervisor In fact, counsel suggested that the evidence indicated that this was not the case and that when the totality of the grievor's duties and responsibilities were examined, and compared to those of Mr Yaremovicz, it was clear that he was properly classified Counsel cited a number of cases to the Board including Smith 1203/90 (Kaplan), White/Foster/Kellar 670/88 (Stewart), Noon 111/81 (McLaren), Dumond 1822/90 (Kaplan), and Booth 192/90 (Low) The Smith case 13 .' " tj involved the consideration of the same class standard, although the facts were somewhat different in that the grievor in that case was a Zone Paint Foreman What was noteworthy about that case, in counsel's submission, was the fact that the grievor in Smith exercised a number of personnel functions not exercised by the grievor in the instant case The Board nevertheless found that he was properly classified The White/ Foster/Kellar case also involved the' Interpretation of the class standard at issue in the instant case Dumond and Booth both deal, among other things, with the Board's standard of review, and employer counsel argued that the union had f(iiled to discharge its responsibility to demonstrate that there was a substantial variation in either the nature or scope of the duties performed by the grievor from those set out in the class standard Moreover, counsel argued that insofar as some of the duties the grievor performed may not be explicitly contemplated by the class standard, such as the grievor's paperwork duties, this work did not go "beyond" the class standard, as it was work that the e,vidence established was less skilled than that covered by the class standard (Evans 1531/90 (Samuels) Accordingly, counsel requested that the grievance be dismissed Union Reply In reply, union counsel noted that the evidence was uncontradicted that the grievor filled in for his supervisor while his supervisor was away Union counsel also distinguished a number of the cases relied on by the employer, and argued that each case must, in any event, be decided on its own particular facts. Turning to the facts of the instant case, counsel argued that they established that the grievor was the 21C, that he was performing a number of core duties not contemplated by the class standard, and argued that the appropriate result was the granting of a Berry Order 14 " :- '" Decision Having carefully considered the evidence and arguments of the parties, we have come to the conclusion that this grievance must be dismissed. It is understandable why Mr Fortier might consider him~elf to be improperly classified. He is the 21C and he exercises various important responsibilities on behalf of the Ministry Other employees consider him to be the supervisor in the absence of Mr Yaremovicz, and he impressed the Board with his knowledge and abilities Obviously he is a good employee rendering valuable service to the Ministry He is not, however, on the evidence before us, improperly classified We are in agreement with this BoaJid's substantial line of jurisprudence that for a classification grievance to succeed, there must be a substantial difference between the duties being performed and those described in the class standard In the instant, case there is very little difference at all We find on the evidence before us that virtually all of thegrievor's duties and responsibilities are covered by the standard For instance, we find that the limited training work that he performs is encompassed within his supervision responsibilities We find that his paperwork responsibilities are specifically contemplated by the standard which states that Highway General Foremen and Forewomen " prepare reports on work progress, expenditures, vehicle operation costs and material usage" Mr Fortier's supervisory work is also covered by the class standard, for that standard anticipates incumbents such as the grievor supervising the day-to-day work of other employees The evidence establishes that this is exactly what the € ;,;;, 15 . I f' grievor does. The evidence also establishes that .he does not do his supervisor's job in his supervisors absence On the evidence before us, Mr Fortier and Mr Yaremovicz perform very different Jobs. While the grievor is the 21C, the evidence does not establish that he is the "acting supervisor" in Mr Yaremovicz's absence in that his duties, responsibilities and authority while Mr Yaremovicz is away do not significantly change 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 w0rk 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 Accordingly, and for the foregoing reasons, the grievance is dismissed DATED at Toronto this 19th day of January, 1993 j;v /L..==- _ _ , William Kaplan Vice-Chairperson ~ ------- :J Carruthers Member ~~ M. O'Toole Member I