Loading...
HomeMy WebLinkAbout1982-0596.Argo.86-04-18THE GRIEVANCE SETTLEMENT BOARD Under THE CROWN EMPLoGEES COLLECTIVE BARGAINING ACT BE.TWEEN: . , OPSEU (Lloyd Argo) Grievor, .; i,:.~ ,.~. .Before: The Crown in Right of Ontario (Ministry of Transportation and Communications) R. J. Roberts Vice-Chairman L. Robinson Member A. G. Stapleton Member Employer. Appearing for : the Grievor: M. Farson Counsel ,, ~~ Cornish & Associates Barristers & Solicitors Appearing for the Employer: P. W. Codner Staff Relations Officer Personnel Services Section Ministry of Transportation &Communications Hearings: March 11, 1985 November 4, 1985 .- AWARD This is .,one of those perplexing.cases arising out of an"atypical"classification. In such cases,.,it seems that asking. whether the grievor's job "best fits" one of two classifications is a bitlike asking whether an apple is best,described as a large or small orange.. The question forces a choice to be made betweentwo unlikely alternatives. Nevertheless, we will do our best to rise to~;the challenge. In October, 1981, the Northern Region of the Ministry decided to combine the job of Program Development Officer with that of the grievor, who then was the Regional Scheduling Co-ordinator of the job. According to Mr. W. Peck, who was the Manager, Resources Planning, etc., for the Region, it was decided to combine these two positions because the person who held the position of Program Development Officer had just retired and it had been observed that both jobs had redundent functions. Up until that time, the Program Development Officer had supervisoryG7TLresponsibility for the grievor. The former was classified as a Tech 3 Construction (Atypical). The qrievor was classified in the more junior classi- fication of Scheduling Co-ordinator 3. The grievor testified that his previous job dealt only with the scheduling of pre-engineering activities, for example, dealing with plans, surveys, and geotechnical matters in orderto prepare contract packa,ges.. The role of his former supervisor, he stated, was in Program Development. That.activity did not continue, but had the scheduling added to it and essentially became the new job. The new position, the grievor stated, differs from his previous'~schedulinq position in that it generates the projects that he used to schedule. He stated that he also performs field investigations, identifies deficiencies, and prepares a full report on various ~deficient areas. Mr. Peck testified that he was the person who prepared the summary of duties and r~esponsibilities for the combined job, which was 'given the title of Program Assessment and Develop- ment Officer. This summary reads.as follows: SUMMARY OF DUTIES AND RESPONSIBILITIES There are three major functions of this position which are performed under limited supervision re- quiring the incumbent to utilize a high degree of ~initiative and judqement as his decisions directly :. affect the overall Regional~Capital, Minor Capital and Day Labour Programs. 1. Planning Function: -Identifying highway deficiencies from Highway Inventory. -Developing Regional priorities to address deficiencies in the 3 categories of Capital Construction, Minor Capital and Day Labour through cqnsultation with the various Regional and District-Offices. ,-Formulating priority lists into 5-year work plans for Capital Construction program through 30% consultation with Priority Development Branch and Senior Officials of the Ministry of Northern affairs. -In conjunction with the Regional Municipal Maintenance Office, assists in the development of the Minor Capital and Day Labour Programs. -Analyzing technical information, preparing justification reports for a variety of projects 2. 30% il_“.. 3, 25% 4 10% 4. and arranging the,issuance of Work Project numbers. Scheduling & Co-ordinating the Pre-Engineering requirements in conjunction with Senior Management Andy Section Heads by: -Scheduling and allocating available resources to effectively and efficiently implement work plan within predetermined time frames -Providing current,status of all projects for dissemination to users through usage of Regional P.E.S.A. computer system. -Monitoring actual versus predicted results advising Manager,. Engineering and Right-of-Way of analysis and implement requisite remedial action as required. -Reviewing'with the Manager, Municipal/Maintenance Office, the overall Regional Minor Capital and Day Labour Programs consisting of a'variety of projects carried out in five Districts. ~..., -Scheduling and c.oTordinating requisite pre- engineering requirements for each project. Assessment Function: -Reviewing Regional Work Plan to ensure the Plan is consistent with the Provincial Roads Long Range and Operational Plans. -Recommending to senior management the most effective alternative to compensate or correct deviations. -Preparing annual report actual versus:predicted results indicated in the overall work plan analyzing deficiencies projecting pre-engineering cost including manpower allocation, projected estimates, efficiency in delivering work program and actual expenditures. Performs other duties such as: -Liaising with Priority Development Branch with respect to Regional Work Program to ensure all internal/external commitments with regard to Regional Program are met. -Processing clearance reports. -Preparing and/or printing input for all correspondence pertaining to Regional Advance Construction Program. r 5; -Providing executive-secretarial duties to the Chairmanof ,Regional Program Committee. ,- 5% 5. As assigned. Mr. Peck testified that inhis opinion, 30% was appropriate for the scheduling and co-ordinating furiction. He added that while the grievor was involved in drafting reports such as justification reports, he did not have authority to sign them, in the sense of being the person who authorized them. Hestated..on cross-examination that when the job of .I.*:-. 'h-y>+ Program Development Officer was merged into this new job, there were other duties than those mentioned by the grievor, such as duties regarding staff training in construction, etc., which were taken out of that position and allocated to other positions in the Region. The grievor testified that when he became the incumbent in the new job, he expected to get the classification of Engineering Officer 3, which, for purposes of this arbitration, was stipulated by the parties to be the same asTech 4'Construction.' He stated that this was what he was told by Mr. Peck at the time that the job was advertised,and that Mr. Peck said there was a good chance for an upgrade to this level because of the addition of responsib- ility In his own testimony, Mr. Peck denied giving the grievor any such assurance. He recalled that he said to the grievor that I ..- . 6. 7 Tech3 Construction was the bottom line, in the sense that the classification could not go below that, but that he had to remain "neutral" with respect to the chances for any upgrade because there were too many uncertainties regarding an apparent on-yoiny.review of the Engineering Officers' series. He indicated that he never said to any of the applicants that there was a "good chance" ~Of a higher classification. -: .,::;:.. The yrievor testified ~that the emphasis in his new job upon planning as opposed to mere implementation or scheduling-- as in his old job-- was something which qualified the job for the classification of Tech 4 Construction. Be also referred to a job competition notice for a Senior Project Analyst at Head Office 'which was classified at the Tech 4 Construction level. The \ description of the job in the competition, he. stated, was very similar to the work in his present job. This description was as follows: THE JOB: Under minimal supervision you will develop.and maintain the annual and multi-year Capital Con- structlon Work Projects Plan (Work Plan). Duties require that you analyze and evaluate work projects that are nominated for inclusion in the Work Plan and co-ordinate their progression through to con- struction. You will also prepare staging plans for interrelated projects for budget purposes, identity and review any project scheduling and/or cp-ordination problems with Regional staff and recommend appropriate action that will ensure the Work Plan is consistent with priorities and Ministry objectives. As well, you will identify issues, collect and analyze pertinent .background data from other offices and external agencies and prepare concise documentation, reports and corres- pondence for senior executives and the Minister's Office. 7. The grievor stated that, ~.as described above, he worked under ~minimal supervision and ~developed and maintained the multi- year capital cost plan. He also analyzed,evaluated, and co-ordinated throu,yh to construction,projects just like those described in the ,:_ notice of competition. He also stated that he prepared Staging plans,.identified and reviewed project-schedules, dealt with problems with regional staff regarding restictions due to funding problems, etc., and directed funds to higher priority projects. As .in the foregoing description, he added;he dealfzwith other " agencies such as the Ministry of Northern Affairs. . : . The grievor added that he was responsible for several reports, and primarily the justification report, which identifies deficiences, defines the scope of the project, and recommends the timing and type of reconstruction. He agreed, however, on cross- examination, that eventually, this report would get to a Senior Project Analyst in the Head Office, who was empower~ed to review and return the report if it was deemed to,be, e.g., incomplete. He added that in the last seven years, he has never had one report returned. In cross-examination, Mr. Peck agreed that communication skill was an important factor of the grievor's job. He stated that scheduling, as a form of communicating objectives and de1 ivery of programs,. was a matter which was important. He added that the yrievor did not have responsibility : . . 8. to deliver programs as promised. The grievor did have to meet ‘I deadlines to submit scheduling reports, he stated, but he did not have the responsibility to.deliver the project which was being scheduled. This responsibility, i.e., that of meeting the schedule, was that of the Project Manager. The grievor's job involved over- seeing or-monitoring the projects tosee if deadlines were being .~ met. In performing his scheduling functions,,,.Mr. Peck stated, the grievor would be dealing with.both Senior and Junior Project Managers. If a Project Manager were identifi,ed by the grievor as not being gable to meet the schedule, then the matterwould come . . to Mr. Peck's level and it would be at that level that a decision Gould be made either to add resources to meet the schedule or make a change. As‘~to adherence to departmental policies regarding design, Mr.~.Peck stated, the Project Manager was responsible for that. The grievor did not have to worry whether policies and procedures were being followed. In fact, he did not have any need to know what they were. The class standards for Technician 3, Construction and Technician 4 , Construction, reads.as follows: TECHNICIAN 3, CONSTRUCTION CLASS DEFINITION: (3 ) These employees, as construction supervisors, co-ordinatr several road and/or bridge construction p,rojects.(&hey review completed design drawings with the District Construction Engineer and recommend re- quired changes in design, procedures or specifications based on an inspection of the proposed project site. (&hey arrange for project supervisors, survey technicians and inspectors to adequately staff projects, and period- ically inspect projects to ensure conformity of all phases of construction to contract specifications. 9. (4). They review problems with project supervisors and refer only complex technical problems to'the Con- struction Engineer.(.5)They review monthly progress payment reports.and final estimates and ensure proper documentation to support contractor paymentsd5)They review infraction reports and contractor's claims, write, detailed reports on claims and recommend to the Construction Engineer amounts that should be paid. (7)They also review contractor's evaluation reports which are used as a basis for contract bidding pre-qualifi- cation. QUALIFICATIONS: 1. Grade 12 education. 2. At least 7 years' experience in related work, :.preferably with the Department. : 3. Demonitrated supervisory and administrative ability. TECHNICIAN 4, CONSTRUCTION .i= . .._. CLASS DEFINITION (1) h T ese employees act as Assistant to the Con-. struction Engineer in Districts where the construction programme is very large.(z!They arrange utility relocations prior to the start of construction and negotiate with utility companies the .Department's contribution to the costs.(3)They work closely with road design staff or consulting engineers during the design stage of projects, providing guidance based on many years of highway construction experience and an intimate know-' le.dqe of Department policy. (,4) They review requests for staff received from construction supervisors and transfer staff from contract to contract as the work load fluctuates.(5)rhey prepare lists of candidates for qualifying examinations and review the results of tb.ese examinations with the individual technician.(c?They review field appraisals and recommend re-classifications. ('7 1 Using their knowledge of design standards and construction procedures they assist the Maintenance Engineer in handling complex utility encroachments on highway rights-of-way. (8)-, arnce the Construction Engineer is frequently on projects reviewing progress in the field, these employees act for him'by giving decisions on a wide range of problems encountered in the field and for which an immediate decision by telephone or radio is imperative. 10. QUALIFICATIONS: 1. Grade 12 education. 2. Extensive construction experience in supervisory position. ~. 3. Demonstrated supervisory and administrative ability. (Sentence numbers supplied.) Mr. Peck testified that virtually none of the riumbered sentences in either of the tWo class standards, above, apply to the qrievor's job. As to the classification of Tech 3 Construction, he testified that while the qrievor was not a cpnstruction super- visor, he did co-ordinate scheduling of pre-engineering design projects. Similarly, with respect to sentence(4),he stated that the sentence did not apply in context but the grievor did review problems and referred them to the Manager of Resources, etc. The remaining sentence upon which Mr. Peck was prepared to make some comment was sentence(6), when, he indicated~~that somewhat analogously, the grievor prepared justificati~onreports .and the scheduling forms. Other than in these tangential respects, he testified, none of the sentences was applicable to the qrievor. ication of Tech 4 Construction, Turning to the classif Mr. Peck testified that none of the @lapplied even tangentially to the sentences save sentence number griever's job. with respect to the description contained in sentence(3), he stated that the scheduling aspect of the griever's job required him to work with design staff to determine.the scheduling of work. It was submitted on behalf of the grievor that nothing 11. in the description of the Tech 3 classif,ication applied to the griever's job; however, some of the sentences in the Tech 4 did apply. With respect to sentence(?), it wa,s pointed out that, while the grievor did not arrange utility--relocations, he at least provided information for that purpose to the Utility i Relocation Co-ordinator for the Region. As to sentence($,, it was 'submitted that the grievor worked closely with road design i staff as the main part of his job. In this regard it was stressed that the Tech 4 class standard referred to road desi~gn while Tech 3 never referred thereto. It also was stressed that, in line with the requirements of sentencer, the qrievor was capable of providing guidance based u,on 18 years of highway construction experience in a supervisory position with the Ministry. It was pointed out that the griever was ver.vf&liar with.deparf- mental policy. Because planning was the essence of the grievor's job, and the first three sentences of the class standard for Tech 4 Const.ruction, had some emphasis upon planninq,~ it was submitted the "best fit"'for the griever's j'ob was classification of Tech 4 Construction. We have already alluded to the difficulties which were presented to the parties .and the Board by the fact that this was an "atypical" classification. On any objective ex- amination of both class standards, it must be concluded that neither fits the grievor's job very well. In light of this, it :would seem tooartifical to attempt to resolve the question before us by contorting. this or that aspect of the griever's job in such a way as to fit within a sentence or two of either class i’ 12. ..standard. Rather, it would seem most appropriate to attempt to draw from the evidence some idea of whether the grievor was required to exercise in his job the level of~skill, ability and responsibility to be expected of a Tech 3 or a Tech 4. . . Our c~onclusion is that, on this analysis, the grievor's job "best fits" in the classification of Tech 3 Construction. Most telling in this respect, it seems, is the fact that when .~ the two previous jobs were merged; the one at the highest level, i.e., that of the grievor's supervisor, was classified in.the classification of Tech 3 Construction. The evidence was that no more responsible duties were added to this job in the merger; rather, the added duties must have been of a less responsible nature. They were the scheduling, etc., duties of the grievor which were classified~ at a lower level. These duties constituted 30% of the revised job. This leads to a strong inference that, if anything, the new job was of a less responsible order than that which had been classified without challenge as a Tech 3. Unless the evidence showed that the original Tech 3 job must have been / wrongly classified all along, it would be impossible to conclude that a downgrade in the responsibility level of that job could result in an upgrade to the classification of Tech 4. There was little, if any, evidence to illuminate this aspect of the case. The qrievor did testify that he believed that the merged ~job resembled closely'that of a Senior Project Analyst at Head Office, which was classified at the same level as a Tech 4 Construction. However, this evidence was far from . 13. sufficient to show that the grievor exercised the same level of responsibility as a Senior Project Analyst. The latter position was at Head Office, while the qrievor held a job in a Region. Moreover, according to the description in the advertisement of the competition, the Senior Project Analyst was responsible to prepare documents, reports and correspondence "for senior executives and the Minister's Office." This; it seems, is indicative of a higher level of responsibility than that exercised by the qrievor. In line with this, it'must also be noted that, according to the evidence, it'would be a Senior Project Analyst of this type who would be responsible for reviewing, e.g., justification reports prepared by the grievor and authorized by his supervisors. The grievance must be dismissed. DATED at London, Ontario, this 18th day of 'April, 1986. I - - L. Robinson. Member