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HomeMy WebLinkAbout1984-0493.Thompson.85-01-02493184 IN THE FATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEKENT BOARD Between: OPSEU (Ron Thompson) - and - Grievor The Crown in Right of Ontario (Flinistry of Transportation and Communications) Employer Before: For the Grievor: R. L. Verity, Q.C. Vice Chairman T. Traves Member E. Crsini Flember \ N. Luczay Grievance Officer, OPSEU For the Employer: S. Barty Personnel Services Northwestern Region Ministry of Transportation and Communications Hearing: November 15, 1984 On April 16, ante alleging improper Operator 1. In the gr Highway Equipment Oper DECISION - 1984, Ronald Thompson filed a griev- classification as a Highway Equipment ievance he sought reclassification as a ator 3. At the Hearing, the requested -2- settlement was amended, with the consent of the Employer, to claim reclassification as a Highway Equipment Operator 2. The facts are somewhat unusual. The Grievor com- menced employment with the Ministry in May 1970. At present, he is classified as a Highway Equipment Operator 1 and works in the Ministry's Sault Ste. Marie District (District 18) in the Northwestern Region. At the time of this grievance, the Grievor's position was a "Pool Operator A". In that capa- city, the Grievor operates Ministry equipment at various lo- cations throughout the District as opposed to a patrol yard assignment. The purpose of the Grievor's position is set forth in the re Form (Exh evant Position Specification and Class Allocation bit 3). "To operate and maintain throughout the District one or more units of M.T.C. pool equipment used for j the purpose ot constructing, reconsrrucrlng ana maintaining roads and rights-of-way. Performs gen- eral labouring duties when required." - 3 - The Ministry utilizes a wide variety of equipment in connection with the construction, maintenance, snow re- moval and patrol of highways and roads within its jurisdic- tion. In the preamble to the Highway Equipment Operator Class Series, "Equipment" is referred to in the following terminology: "EQUIPMENT: Many pieces of equipment used by the Ministry staff are classified into three groups depending on the complexity of the equipment and the skill re- quired of the Operator. In Appendix 1 - Equipment List - Type 'A' equipment represents light equip- ment, Type 'B' heavy equipment, and Type 'C' heavy and highly specialized equipment. Type 'A' is the lowest rated equipment, Type 'B' the next lowest, and Type 'C' is the highest rated. Refer to Appen- dix 1 for equipment listing and rating." For the most part, individual are listed and rated in Appendix 1 enti which follows the preamble to the Highw Class Series. pieces of equipment tled "Equipment List", ay Equipment Operator The Grievor testified that in the year preceding the filing of his Grievance, he operated the following Type "A" equipment - 6 ton truck, 5 ton truck, 4 ton truck, 3 ton truck. In addi tion, the Grievor testified that he operated the following T me "B" Equipment - 6 ton truck plus float, 5 ton truck plus HI-AB, grader, loader. The Ministry did not dispute the kind of equipment operated by the Grievor, however, it was the Ministry's pos- ition that the 5 ton truck plus HI-AB was Type "A" Equipment as opposed to Type "B" Equipment. The dispos ification depends in allocation of the pi plus HI-AB". ition of the Grievor's claim for reclass- large measure upon the rating and ece of equipment known as a "5 ton truck The Grievor presented evidence by way of statisti- cal data (Exhibit 4) regarding his work assignments for the period April 26, 1983 to and including April 26, 1984. The summary in Exhibit 4 contained the following information: Equipment Used By Total Hours of Work the G,rievor ___ in Operation of Equipment 6 ton truck plus float 6 ton truck 5 ton truck plus HI-AB 5 ton truck 4 ton truck 3 ton truck Grader Loader Total Hours: 399 hours 27 hours 578 hours 1 hour 17 hours 16 hours 9 hours 3 hours 1,081 hours -5- The Grievor alleged that the Ministry was incorrect in classifying the 5 ton truck high HI-AB as Type "A" Equip- ment. In his opinion, that piece of equipment was "specialized equipment" that was more complex to operate than a power sander which was classified as Type "6" Equipment. The Ministry evidence (Exhibit 6) was that the Grievor's total working hours were 1,800 hours. Gary Todd, then District Maintenance Engineer testified that the Grievor was credited with the accumulation of 1,155 hours in the operation of equipment, when allowance was made in the in equipment maintenance. Grievor's favour, for time spent Mr. Todd received a wr Hodgins, Head of the Fleet Manag Ministry's Head Office, that the itten opinion from G. C. ement Section of the 5 ton truck plus HI-AB was Type "A" Equipment, and was so categorized because it lacked the "specialized bodies" envisaged by Type "B" Equipment (Exhibit 6). Mr. Todd received essentially the same information from Ministry District Personnel. Mr. Todd reviewed the Grievor's complaint, and his investigation concluded that the Grievor devoted 38% of his time in the operation of Type "A" Equipment, and 26% in the operation of Type "6" Equipment. The Ministry calculations were based upon the inclusion of the 5 ton truck plus HI-AB as Type "A" Equipment. Based on these calculations, Mr. Todd -6- concluded that the Grievor was operating Type "B" Equipment less than 40% of the year's working time, and accordingly, the Grievor did not qualify for reclassification. Robert McIlheron, Senior Equipment Operator- Instructor from the Ministry's Downview Head Office, testi- fied that the piece of equipment in question was standard equipment used by the Ministry for stock pick-up of different materials. His evidence was that although the HI-AB attach-- ment was an hydraulic loader, it could not be classified as a crane. He testified that the 5 ton truck plus HI-AB was Type "A" Equipment and not sufficiently complex to rate the Type "B" classification. The relevant Class Standards read as follows: HIGHWAY EQUIPMENT OPERATOR 1 c CLASS DEFINITION This cl,ass includes positions of Highway Equip- ment Operators who are assigned to the duties described in one of the following work categories: a) Operate Type 'A' equipment in summer and winter at least 70% of the year's working time; b) Operate Type 'A' equipment in summer and act as wingman in winter for a total of at least 70% of the year's working time; cl Act as labourer in one season and operate Type 'B' in the other season for at least 40% of the year's working time. - 7 - SKILLS AN0 KNOWLEDGE REQUIRED Ability to carry out oral and written instruc- tions without immediate supervision; an aptitude for driving and an acceptable driving record." HIGHWAY EQUIPMENT OPERATOR 2 CLASS OEFINITION: This class includes positions of Highway Equip- ment Operators who are assigned the duties described in one of the following work categories: a) Operate Type 'A' equipment in summer, and operate Type 'B' equipment in winter; b) Operate Type 'B ' equipment in summer, and act as wingman in winter; c) Act as labourer in summer and perform the duties of a night patrolman in winter. SKILLS AND KNOWLEDGE REQUIRED 1. Some experience in the operation of highway equipment or related types of machines. 2. Ability to supervise labourers or other assistants. An aptitude for driving and an acceptable driving record. NOTE: Wingman equates to Type 'A' equipment. In mixed positions, where operators operate heavy equipment in one season and light in the other, they must operate Type 'B' equipment at least 40% of the year to be included in this class. Night patrol assignments must be of at least 4 months duration." against classif forming level. In classification grievances, the Board is asked to consider two matters - whether the Griever's job measured the relevant Class Standards comes within the higher icat ion sought, or whether there are employees per- the same duties who are classified at the higher See the Judgment of Mr. Justice Callaghan in the judicial review of OPSEU (Michael Brecht) and Ministry of Community and Social Services, 171/81. -8- No useful purpose could be served by reciting the arguments of the parties. Suffice it to say that each attempted to justify its position. In the instant grievance, the Board is asked to consider only the first test. The evidence establishes that the Grievor's principal duty is to operate the 5 ton truck with HI-AB. He is assigned that duty on a year round basis, and accordingly his duties do not vary with the seasons. In addition, the Grievor does operate the 6 ton truck with float (a tractor-trailor - Type "B" equipment) in the absence of the regular float driver. The float operator in the District - 9 - retired on November 1, 1983, and from the date of his retirement until June of 1984, the Grievor was called upon to assume some of the responsibilities of that position in conjunction wi.th private contractors. The preamble to the Highway Equipment Operator Series,indicates that assignment to any one of the four classifications of Highway Equipment Operator is based upon the type of equipment operated, the percentage of time run- ning the particular equipment, seasonal assignments, qualify- ing tests, and the percentage of time spent on equivalent assignments. The list of equipment classified as Appendix 1 of the Class Series was last revised on January 1, 1970. The difficulty experienced by the parties is that the piece of equipment in question is not listed in Appendix 1. The Board is of the opinion that Appendix 1 is presently in need of a further revision. In classification grievances, the onus is upon the Grievor to justify the request for the classification sought. On the evidence, the Board is not persuaded that the Employer was incorrect in its characterization of a 5 ton truck plus HI-A6 as Type "A" Equipment. Obviously, the distinguishing features between Type "A" and Type "B" - lil - equipment are the degree of complexity required to operate the equipment and the skill required in the operation of the equipment. Here, the Grievor'in operating the 5 ton truck with HI-AB performs two separate functions which are quite independent of each other. The driving component and the HI-AB component do not take place simultaneously. When the operator performs the driving function, there is no involvement with the HI-AB function. Similarly, when the HI-AB hydraulic loader is in operation, there is no driving requirement by the operator, even though the truck engine is in operation. In our opinion, Type "B" Equipment contemplates a more complex operation and accordingly the requirement of greater skills. In the result, we are unable to find that the Grievor operates Type "B" Equipment at least 40% of his total year's working time, in order to justify the higher classification. On the evidence, we cannot find that the Grievor performs work in any of the work categories I - 11 - attributable to a Highway Equipment Operator 2. Accordingly, this Grievance is dismissed,. DATED at Brantford, Ontario, this 2nd day of slanuary, 1985. I--