HomeMy WebLinkAbout1984-0635.Curnow and Ng.85-05-16Between:
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE.GRIEVANCE SETTLEMENT BOARD
OPSEU (.I. Curnow and S. Ng)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Transportation and
Communications) Employer
Before: J. W. Samuels Vice Chairman
J. McManus Yknber
W. A. Lobraico Member
For the Grievor: P. A. Sheppard
Grievance Officer
Ontario Public Service Employees Union
For the Employer: T. W. Wheeler
Head, Classification and
Pay Administration Section
Human Resources Planning and Services Branch Ministry of Transportation and Communications
Hearing: March 28, 1985 and written argument
2
This award concerns the grievance of Mr. S. Ng. As will be seen dt the
end of the award, the Board is reserving its jurisdiction concerning the
grievance of Ms. J. Cumow.
The grievor is,a Landscape Planner. Since March 2, 1983. he has been
classified as an Arboriculturist 3. He claims that he is wrongly classified, and
seeks reclassification as a Parks Planner 2.
The parties are agreed that the griever’s job is accurately described in
his position specification, developed in July 1982. In Appertdi~ A. there is an
extract from the position specification, setting out the purpose of the
position, the summary of duties and responsibilities, and the skiUs and
knowledge required to perform the work. The Appendix is taken from the
exhibit entered by the Ministry, with the very useful rotations numbering
the duties in the summary of duties tid responsibilities. We shall refer to
the duties by these numbers.
Mr. Ng is a Landscape Architect. This is a professional qualification,
reccgn&d now by provincial legislation He achieved this status by taking a
Bachelors of Science in Physical Sciences at the University of Guelph and
then a degree in Landscape Architecture at the same University. His job of
Landscape Planner requires this training. The position specification says
that the skill and knowledge required for the position is “normally obtained
through a degree in Landscape Architecture from a university of &ognized
standing and several years related.experience in the landscape architectural
field”.
The Landscape Planner is concerned with the aesthetic and Vegetative
elements of highway design. The engineers will design the road and
establish the engineering specifications. They may call for a sound baffle, or
a berm, or a roadside stand. The Landscape Planner is responsible for the
landscape design of the road and its sound baffle, or berm or roadside stand.
He must ensure that the engineering specifications are met in a way which is
least disruptive of the aesthetic and vegetative elements of the landscape.
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The Landscape Planner is ppt concerned solely with growing trees or grass.
He may suggest the use or preservation of plant life in order to achieve the
aesthetic and vegetative goals of the .Landscape design, but this greenery is
only a part of his overall concern. This is made clear in the summary of
duties and responsibilities. For example, key duty l(d) speaks of providing a
“visual inventory and impact analysis”; 2(d) speaks of determining “visual
and vegetative requirements”. To do the job, one needs much more than a
knowledge of horticulture. The position specification requires “demonstrated
experience and a thorough knowledge of the theories and praCticeS of
Landscape Architecture and Horticulture and a working knowledge of Civil
Engineering”,
This wider concern is reflected in the Code of Ethics of the Ontario
Association of Landscape Architects. The Code commences by describing
landscape architecture as “the design planning or management of the land.
and the arrangement of natural and man-made elements thereon through
appIication of cultural and scientific knowledge, with concern for resource’
stewardship, to the end that the resultant environment serves a useful and
enjoyable purpose”. Again, we see that trees and grass are only a part of the
overall responsibility of the Landscape Architect.
Much of the griever’s job ls related to the Btvifo~menr/
Rssessmenr Acf, R S. 0.1980, ch. 140. Pursuant to this Act, most of the
Ministry’s “undertakings” are sub jetted to the environmental assessment
process. The Ministry mustsubmit to the Minister of the Environment an
assessment of the impact on the “environment” of the undertaking, the
alternative methods of carrying out the undertaking, and the alternatives to
the undertaking. “‘E&onment” is very broadly defied. It means
(i) air, land or water,
(ii) plant and animal life, including man,
(Iii) the social, economic and cultural conditions that
influence the life nf man or a community,
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(iv) any building, structure, machine or other device or thing
made by man,
(VI any solid, liquid, gas. odour, heat sound, vibration or
radiation resulting directly or indirectly from the
activities of mau+Pr
(vi) any part or combination of the foregoing and the
ifiterrelationships between any two or mare of them.
Thus, the Ministry must consider its projects within a very broad context,
and must examine alternative methods of carrying Out the project, end
alternatives to the project. The purpose al the AU is to ensure that the
impact on the “environment” is assessed in the planning stages, so that
degradation of the environment can be foreseen and prevented, or mitigated.
The griever’s responsibility is to assess the impact of the highway on the
aesthetic and vegetative elements of the environment.
The Landscape Planner does not c& out a landscape design. This is
the responsibility of the operations people. The Landscape Planner de&n&
He is responsible for the ideas, the concepts, the plans. To do his job, he
must first study the area to be aflected by the new highway work (key
duty 1 I. Then he provides landscape de&n advice (key duty 21, end
prepares landscape plans (key duty 3). He wiII work closely with Landscape
Operations to ensure that the plans are implemented (key duty 4). The
griever is held out by the Ministry as its expert in landscape design, and he
represents the Ministry in his prolessional capacity at public and Inter-
ministerial meetings, and in dealif@s with private consultants.
The curious thing about this case is that line management attempted
vigorousfy to explain all of this to the Ministry’s classification officeis. But
they were unsucoessful The griever was classified a$ an Arboricultutist 3
on an “atypical” basis.
The Arboriculturist is one of the positions in the Technical Services
Category. The grievor was placed in this Category because the Preamble to
this Category says that it includes:
The conduct of sub-professional applied scientific work and
the provision of support services to professional staff,
entailing such responsibilities as
- participating in the management and conduct of
specialized programmes or units in arboriculture,
horticulture, landscape design, agriculture...,
And, having selected this Category as the appropriate one for the gtievor, the
classification officers then selected the Arboriculturist series, and the third
level, as best suiting the grievor’s position In Appendix B. the class
standard for the Arboriculturist 3 is reproduced.
This is clearly an improper classification of the grlevor’s position In
the first place, he does not do “sub-professional” work. He is a well-trained
professional, who is required to exercise his profession in carrying out his
duties. Indeed, he would not be able to do his job lf he were&t a’
professional Landscape Architect He doesn’t manage or conduct programs.
He desipns. He is a &I of ideas, d o~ncepts. He applies his professional
talent to develop landscape designs which are concerned with the aesthetic
and vegetative elements of a highway. The preamble to the Technical
Services Category makes it absolutely clear that “The Category does not
include..~positions requiring the application of professional knowledge in the
social areas”. Yet the griever was classified within the Technical Services
Category. He doesn’t belong here.
Having said that the griever’s position i? wrongly classified within the
Category, it is unnecessary to consider the class standard for the
Arboriculturist 3, which is within the Category. But a few remarks would
make the point clearer. The Arboriculturist is concerned almost exclusively
with vegetative growth. There is nothing in the job description which relates
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toaesthetic design. Furthermore, the Arboriculturist is a technical person.
He is concerned with materials and equipment, and growing things. To do
the job, he needs a degree in forestry or horticulture. He does not need the
broad education called for by the Landscape Planner. The class standard
does speak of “a recognized equivalent pertaining to landscape architecture”,
but this was written in 1966, before the term “landscape architecture” took
on the meaning it has today.
In the stage two reply to the grievance, Ms. M. Kelch, Executive
Director of the Highway Operations and Maintenance Division, expressed her
view that:
I am not entirely satisfied that the classification standards
for the Arboriculturist series provides sufficient
relationship to your Landscape Planner position
However, based on existing classification standards, there
is no choice other than to place your position in this series
and deny your grievance.
We agree entirely with the first sentence. .The Arboriculturist series clearly
does not fit the griever’s job. However, we disagree with the second
sentence. There is another choice.
Would the griever be properly classified as a Parks Pianner~Z? De
commenced his employment with the Ministry as a Parks Planner 1, and the
changes which provoked the reclassification in 1983 did not involve any .
different tasks, but merely increased responsibility and accountability in
essentially the same poshion One level d management was deleted in a
reorganization, and this meant that the griever moved up in terms of
responsibility. In a memorandum of July 15,1982, Mr. D. A. Barr, then
Manager of the Maintenance Operations mice, explained to A. S. Mitchell,
Head of the Classification and Administration Section of the Personnel
Branch. that the revised position descriptions for the griever and others
reflected, among other changes, the following:
7
- a shill in the planning unit towards preparation of complete design
packages suitable for tendering purposes
- an increased monitoring role and involvement with Regional Offices
- an increased involvement with consultants for the design of
landscape installation
- an increased emphasis on environmental protection
Significantly, the changes did not involve a move away from planning and
design. There was to be an increased use of private consultants and the
griever, as a proIessional Landscape Architect, would be heavily involved in
the dealings with these people.~
The Parks Planner is one of the positions in the Scientific and
Professional Services Category. According to its Preamble, this Category
includes
Occupational groups requiring the continuing exercise of a
scientific or professional discipline normally acquired
through university graduation or professional designation in
which membership is controlled by recognized associations
or licensing bodies-
The griever’s job does require the “continuing exercise of a professional
discipline normally acquired through university graduation”. so his position
would be suitably classified in this Category.
The class standard for the Parks Planner 2 is reproduced in Appendix
C If the word “park” were replaced by.“highway landscaping”, this standard
would fit the griever’s position precisely. Must the Pafks Planner be
concerned with “parks”? In practice, the answer is clearly “no”. The
griever’s previous position was classified as a Parks Planner, and he was
always concerned with highway landscape. There are Parks Planners in the
Ministry of Housing, in the Mliiistry of Government Services, and in the
I&nistry of Transportation and Communications. They are not concerned
with parks. But they are all concerned with l&&u&g in areas ggI&&W&
phvsical environmeat. These employees are responsible for more than
8
vegetative growth They apply their professional talents to designing
facilities and projects. They are concerned with ideas and concepts, not
,managing and conducting programs. In our view, the grievor would be
property classified as a Parks Planner 2.
The griever has asked for reclassification as of March 2,1983, the date
on which he was formally reclassified as an Arboriculturist 3. The grievance
was not filed until June 4, 1984. But the evidence was clear that the griever
and his supervisors were extremely disturbed by the classification from the
begin&&, and the reason for the griever’s delay was that his supervisors
continued to attempt to have the reclassification corrected. It was only
when it appeared that nothing would help except an appeal to this Board
that the griever filed his grievance. In these circumstances, the griever must
be reclassified as of March 2, 1983, and compensated for any loss he
suffered as a result of the incorrect classification.
There were two grievers at the outset--Mr. Ng, and his colleague, Mrs.
Curnow. Mrs. Curnow was called abroad because of a death in her
immediate family, and was unable to attend the hearing, or to instruct
counsel for the Union. We were asked to reserve our jurisdiction to hear and
determine her case, though counsel for the Union indicated that it was the
Union’s position that her grievance should be dealt with in the’same manner
as Mr. Ng’s. Under the G-owa h?phy~es Cofleczive Bargailag AC4
she has an individual right to grieve, and the Union cannot commit her to
any course of action We will reserve our jurisdiction to hear her case, if she
chooses to proceed (though there seems little point to it); and to hear and
determine the precise amount of compensation, in the event the parties are.
unable to settle this themselves.
9
Done at London, Ontario, this 16th day of May .1985.
J. W. Samuels, Vice-Chairman
J. McManus, Member
"I dissent" (Dissent to follow)
W. A. Lobraico, Member
DISSENT
636184 Ng
With respect, I must dissent with the majority award of the Board.
The position of Landscape Planner does not require “professional” qualifications
and until the Ministry changes this, the position does not’ belong in the Scientific
and Professional Services category; In addition, the Ontario Association of
Landscape Architects is not a registered association such as the Association of
Professional Engineers of Ontario, and membership.is not required by law to work
as a Landscape Architect. This leaves the posltlon squarely in the Technical
Services category.
It is also evident that the Ministry was concerned with salary relationships in the
Branch and elsewhere in the Ministry as indicated in Exhibit #I (p. 2). This
accounts for the “atypical” class allocations. I do not believe thii Board should
wander into the area of atypical class usage lest it be accused “of making
speculative job evaluations.
These decisions should be left to the discretion of the Ministry, who are in the best
position to judge salary relationships. The Union’s case supported this when it
declined to compare the position in M.T.C. with those in the Ministry of Natural
Resources, and urged the Board to follow the award for Patrick & Baker 547/80
(Barton). Hare the Board suggested that the parties should develop new or revised
classifications. According to the evidence given, this kind of review is already
underway in connection with the Technical Services category and it should be left
to the parties to determine an appropriate salary.
Based on the evidence I would have denied the grievance as I consider the
Arbdriculturist 3 (atypical) the best fit at the present time. Awarding the Parks Planner 2 Classification must be considered atypical and I do not believe within the
Board’s authority. The Board’s decision should be based on a fairly rigid assessment
of the position specification against the class standard and Parks Planner 2 just
does not fit. You cannot delete or add words to the standard to make it fit.
W. A. Labraico
APPENDIX A, page 1
Extract from the griever's
Position Specification for LANDSCAPE PLANNER
2. P;:?‘XE OF POSITlOKtrwr DOL’T~ZSPJS:T,O,. EX,STISTAIE GO~LSOB,ECTIV~I~TC.I
TO provide, under general ~supervision, a landscape architectural design, consultative and
investigational service required as an integral part of the highway design and constructjo
program:
5. SVI.::.:iFiY OF DUTIES AND RESPONSI6ILITIES ~,NO,CITL~ERCW~TIIGE or iwc SPEW ot, WCHSIC’C!~,CL::T ~ux’:T~o,;.
I::L:fLTC *:cm. C~-,‘I~I.?~I;T.~~i5RI.,NG CO’iDiT1OUS tJNUS”AL FE*,URES ETC.,
Under general supervision of the Supervisor of Landscape Planning:
(1) Conducts landscape planning studies related to environment, route
&,&f
"b
location.preliminary and detail design of the Provincial highway
:‘"I network by:-
20% - evaluating the Ministry's five year provincial highway
4 program to determine landscape planning needs and to '
establish project priorities.
4 - reviewing and interpreting reports and'plans relative to
the impact of new route alignments, highway reconstruction
or upgrading on existing natural features at the route
planning/preliminary design stages by assessing the vegetative
and aesthetic component of environmental factors to determine
sensitivity to highway construction.
.LJ - conducting field investigations throughout the Province to
obtain tangible information on land formations, topographical
features, existing vegetation , adjacent land use, general soil
conditions.
A)- p roviding base information such as woodlot evaluation, visual
inventory and impact analysis, graphic displays and~mitigative
measures to reduce or remove perceived impact for incorporation
into Regional design.
Provides expert landscape development design advice, techniques and
I+D, 'i
3
information to Head Office. Regional Offices and Districts on matters
relating to highway design, construction and maintenance and their
effects on the landscape by:
a)- reviewing Regional preliminary design reports, recommended
alignment and grade, environmental reports, geotechnical
soiTs reports etc. to determine nature and scope of project. 40%
.4'
organizing and conducting field investigations to determine
visual and vegetative requirements by reviewing selected road
design relative to landscape planning needs.
c)- preparing landscape planning reports and recommendations at the
detail design stage outlining information such as sensitivity On
design details for alignment, grading, drainage, vegetative removals,
erosion control, roadside rehabilitation and establishment, roadside
refurbishing and related costs.
,, APPENDIX A, page .2 I
dr providing special contract controls through written specifications I -/ and plan-format to ensure'application of ;ecommendatibns.
'- 4 liaising with Ministry personnel such as Regional Environmental Planners,
Senior Project Managers and Consultants to discuss highway design aspects
(e.g. alignment, grading, removals etc.) relative to landscape planning
and development and to provide interpretation pertaining to related policies.
/q3 3
Prepares and produces landscape plans, specifications,cos,t estimates and
supportive documents for the provincial highway landscape program by:
'-
"y
developing preliminary landscape plans, related cost estimates,
perspective drawings, sketches and sections for use in public'and
30% municipal presentations.
4
- ensuring public commitments for landscaping are made in accordance
with approved Ministry policy.
"i
- developing detail landscape designs , specifications and cost estimates
for full contract package documentation which results in public tendering
of the completed package.
cc,
I- developing detail landscape designs , specifications and cost estimates
for day labour completion by District Staff.
+J- monitoring consultant,design projects as assigned to ensure completion
and Conformitywith the consultant agreement and M.T.C. standards and
specifications.
?4- c. li-ising with consultants to provide technical guidance, explain Ministry
1' policy, standards and specifications.
J aV
4. GIorks closely with Landscape Operations to ensure successful and effective
"19
,+ pre-design input and follow-up through construction and maintenance by:
al- ensuring that'knowledge on methods, materials andmequipment is current
5%
) ,J - providing Landscape Operations with information or projects pertinent
to their area of responsibility.
cl:)- liaisingwith Landscape.,Operations on all landscape plans.
..' -
-> presenting design aspects to construction and maintenance personnel
through lectures and seminars.
, i~~~P, '
fiF5
Represents the Ministry. as assigned, by: .
aI- participating on inter-Ministerial committees as required.
45) - attending municipal and public meetings and information centres.~
5:; -;:- attending consultant progress meetings on planning and design
projects.
4. SKILLSAIiD KNOC’LEDGE REOUIREDTO PERFOWTHE V~ORK~~~~~EEDUCI~IDN.TRIIU,~C.~IC~~,E,,:~CT~.,
Demonstrated exoerience and a thorouah knowledse of the theories and oractices of Landscaoe
Architecture and Horticulture and a working knowledge of Civil Engineering. Good analytica
ability to evaluate the impacts of highway construction on the environment and landscape.
Ability to work to the Ministry's administrative and technical procedures,programs, standar
and legislation (Environmental Assessment Act). Ability to organize and
develop the landscape program on a :Regional basis. Excellent communication
and graphical skills to liaise with Ministry personnel and colleagues and in
meking presentations ,to the general public, Consultant firms, municipal agencies
and organizations on the aspects of landscape planning as an integral part of
the highway design and construction program. A willingness to work in the field
throughout the Province.
This skill and knowledge is normally obtained through a degree in Landscape
Architecture from a university of recognized standing and several years related
experience in the landscape architectural field.
.
ARDORICULTURIST 3
CLASS DEF'INITION:
This class covers the position of the assistant to the Chief
Arboriculturist in the Department of Highways. He assists the Chief
Arboriculturist by drafting policies and procedures, investigating and
developing new materials and equipment, introducing new techniques,
analyring results of experimental projects and soil tests, revietig
growth evaluation reports, writing draft specifications for contracts and'
compiling annual reports.
He liaises with consultants, other departmental sections, other
government departments and governments for an exchange of information
regarding the field of vegetative growth. He provides technical direction
on his own field. He arranges experimental projects and personally
follows them to conclusion. He arranges and gives lectures to arboricultural
staffs .
He co-ordinates the functions of head office arboriculturists and
draftsmen with construction and maintenance progrsnuses to ensure that
landscape plans and projects are initiated and completed on schedule, that
regional land&ape equipmentis being properly utilized and that the work
is performed efficiently.
SRIILS AND KNOWLEDGE RROUIRRD:
Application of landscape design and plant growth pertaining to roadside
development.,
Ability to co-ordinate technical requirements and operational skills.
QUALIFICATIONS:
1. A degree in forestry or horticulture from a recognized university,
or a diploma from the Niagara Parks Commission School of Horticulture
or a recognized~equivalent pertaining to landscape architecture.
2. At least six years' experience in roadside development.
Auril 1966
1
PAWS PI.ANNl It 2 (OAI?r,Al NIHC WIT) - -__--- --
This class covers workin!j.lcvcl planning positions in the park
management arca of Ihe Ministry of Eatural kcSOU~CcS.
These cmployces
plan for new provincial parks and cxtcnsions to existing parks. They
work under the general dirr.cticln of the park planning Supervisor.
These employees rxnminc proposed park sites and prepare delailcd
studies of the physical features of the site and the probable effects of
the developnwnt on the surrourloing area. They prcparc detailed devcl,up-
ment plans including maps and reports and in the process make frequent
visits to the site, discussing the problem with other specialists in lhe
Branch and familiarize themselves with the ecdnomic and social aspects of
the project.
These employees suggest ,lnd may design park structures. They keep
abreast of th; field, applyin!] new techniques wherever practical.
QllAL.1 F I CAT I ONS :
1. Graduation from a university of recognized standing with a
degree in Forestry, Biology, Geography. Sociology, or
related discipline and al least three years’ experience in
the resources management field or an M.A. degree in one of
the above-mentioned subjects, plus two years’ experience in
resources management; at lcast one year’s experience in park
planning; preferably sow knowledge of drafting.
2. Good understanding of the various factors involved in parks
planning, basic principles of construction of park sturctures,
roads, bridges, etc. . .
3. Ability to make detailed technical investigations, carry out
research studies, and prepare detailed-reports and plans;
ability to communicate effectively orally and in writing.
.._
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