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HomeMy WebLinkAbout1985-0497.Anderson et al.86-08-26IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between Before: For the Grievor: For the Employer: Hearing: Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Anderson et al) - and - The Crown in Right of Ontario (Ministry of Natural Resources) R.J. Roberts I. Freedman A..Stapleton Ross Wells Counsel Gowling & Henderson Barristers & Solicitors Grievers Employer D.W. Brown, Q.C. Counsel Crown Law Office Civil Ministry of the Attorney General Vice-Chairman Member Member July 2, 1986 2. DECISION At the outset of the hearing in this matter, it was noted that this panel of the Board had been assigned the classification grievances of almost 200 Conservation Officers throughout the province of Ontario. The parties indicated that they were willing to proceed with the evidence of one grievor, Mr. J. Armstrong, and that they were willing to take this evidence as representarive of a rota1 of E grievers in the Kenora District.. The remaining grievances were to be held in abeyance, and the parties undertook to apply to them, as far as possible, the conclusions reached in the present arbitration. This pr.ocedur~e was regarded by the panel as a satisfactory approach to the matter, and we proceeded to hea~r the grievances of the 0 grievors represented by Mr. Armstrong. A report which was filed as an exhibit at the hearing, called the Gartley-Dawson Report, (February, 19801, gave some indication of the origins of the present dispute. The terms of reference for this report stated, in pertinent part, as follows: The Southern Ontario Committee Minutes of 1979.10.25-26 requested a position paper on the "Role and Respon- sibilities of the Conservation Officer" be prepared by Gartley and Dawson. Although specific reasons behind this request were not provided, iYe believe several events are responsible: (1) Conservation Officers are seeking support for their own association, separate from the Association of Resource Technicians of Ontario. (2) Grievances with respect to present Conservation Officer classifications have been filed, largely based upon the premise that law enforcement responsibilities are significantly different from responsibilities of other positions classi- fied as Resource Technician 3. . ..s. at p. 1. Apparently, for a considerable period of time Conservation Officers have been dissatisfied with being "lumped in" with Resource Technicians in their current classification of Resource Technician 3. This dissatisfaction appears to have been based upon a view that enforcement activities deserve separate and independent recognition. The Class Standard for Resource Technician 3 reads as follows:. This class covers positions of employees per- forming more complex, demanding and responsible technical duties containing considerable latitude for decision making'e.g. check scaling; compiling lake development data, training fire crew: operating type "C" parks or type "C" hatcheries: carrying out Fish and Wildlife management and/or enforcement work; gathering, assembling and compiling technical or scientific data, preparing technical reports and/or plans; assessing technical needs of management or scientific projects and submitting technical recomm- endations, etc. in any assigned area of responsibility. They may supervise and/or train regular employees or take charge of groups of casual employees and, in this context, organise and schedule activities within the general framework of laid down plans or instructions and assume responsibility for the quality and quantity of production and for the work performance of assigned staff. SKILLS AND KNOWLEDGE REQUIRED: Ability to organise projects and supervise implementation; initiative and ability to assimilate new techniques to be applied in a variety of situations; good understanding of resource management principles. . i As can be seen, the Class Standard~appears to contemplate the performance of "technical duties" which are set forth in some detail. Duties involving "enforcement work" are mentioned in an incidental way. The representative grievor, Mr. Armstrong, testified '~, ‘.’ that for at least the last ten years he has been virtually completely involved in enforcement work. He stated that for the last 17 years, he has not been involved in scaling, i.e., measuring crown timber. He stopped compiling lake development data in about 1976. He did not train fire crews, nor did he operate hatcheries. he did not assemble or compile any technical or scientific data nor prepare reports or recommendations based thereupon. .Finally, he did not supervise or train any casual employees or others who might be involved in such activities. Mr. Armstrong stated that the only non-enforcement duties that he became involved in, had to do with a week or so of trap line inspection in the winter time and patrolling a restricted fire zone if there was a fire in his assigned area. Even the latter, he stated, had more to do with enforcement than anything else, in the sense of being in charge of warning people away from the restricted area. Mr. Armstrong further testified that his duties generally involved enforcing several statutes, included the Game and 5. Fish Act, the Ontario Fisheries Regulations, the Migratory Birds Convention Act, the Public Lands Act, he Forest Fires Prevention Act, and the Crown Timber Act, etc. He -stated that in order to enforce the law he and his fellow Conservation Officers wore uniforms, carried side arms, and patrolled in marked parol cars and boats. A typical day would involve stopping vehicles.and boats to check for necessary licences and whether the occupants had committed violations of any of the Acts depending upon the season. While virtually all of his duties involved fish and wild life enforcement, Mr. Armstrong testified, there also were other enforcement activities which fell outside this realm. He mentioned that he could become involved with the Ontario Provincial Police or the R.C.M.P. if the situation called for it. By way of example, he stated that if he were to stop a vehicle to check for hunting and fishing violations and found the driver to be impaired, he would contact the OPP and hold the driver until the arrival of one of their officers. In argument, counsel for the Union indicated that all he was seeking was a declaration from the Board that the grievors were improperly classified in the classification of Resource Technician 3. His essential submission was that the virtually complete concentration of the grievors' duties in enforcement work made their jobs qualitatively different from the jobs described in this Class Standard. In this regard, a. . ‘. 6.. he stressed the overwhelming emphasis in the Class Standard upon technical and management duties as opposed to the incidental mention of enforcement work. This minor reference to enforcement, he submitted, could not be regarded as significant enough to support a conclusion that the work performed by the grievors was described in the classification of Resource Technician 3. In an able argument, counsel for the Ministry submitted that the Board should not become involved in measuring matters of degree--or, as counsel for the Union put it -- attempting to determine when a difference in quantity became equivalent to a difference in quality. So long as the Class Standard contained words which described the work being performed by the grievors, he submitted. they should be found to be properly classified therein. It was not necessary, he submitted, for the Ministry to show that the grievor performed all or some percentage of :' the duties described in the Class Standard. Try as the Board might, however, it does not seem possible to avoid being drawn into a quantttative assessment in the circumstances of the present case. These circumstances represent an extreme. Generally, the proposition put forward by counsel for the Ministry seems acceptable: an employee may be properly classified even though he or she does not perform all or a majority of the duties described in a Class Standard. We accept that Class Standards must, by nature, be general in scope, and there will 7. be 'significant variations in the concentrations of duties of employees who are properly classified thereunder. But here, virtually the only duties that the grievors perform --enforcement work-- are given little significance in the description of the Class, Standard. They are overwhelmed by " technical and management duties. We believe that in a n&-atypical classification such as the one at hand, the Class Standard must contain a more significant reference to the work being done before it can be said to embrace virtually the totality of a job. Accordingly, it is the conclusion of the Board that the grievors are improperly classified in the classification of Resource Technician 3. This conclusion does not, however, carry with it the implication that the grievors must be classified outside of the Technicial Services Category or the Resource Technician Series thereof. The Technical Services Category includes within its scope "Fish and Wildlife and Forest Protection", a broad generic description which obviously would include enforcement work. The preamble to the Resource Technician Series in this category broadly contemplates embracing employees involved in full-time enforcement work. It states, in pertinent part, "positions involving full-time performance of fish and wildlife management and/or enforcement duties are restricted to employees who are graduates of an approved Technical School in Resource Management." (Emphasis supplied) The only difficulty for 8. does not contain any Class Standard placing sufficient signifi- cance upon enforcement duties to embrace in a non-atypical classification the jobs of the grievors. The grievance is allowed to the following extent: the Board hereby declares that the grievors are improperly classified in the classification of Resource Technician 3. In accordance with the decision of the Divisional Court In Ministry of Community and Social Services and OPSEU (Berry et al) (unreported, Samuels) the matter is remitted to the Ministry for purposes of establishing a proper classification for the grievors. We will retain juris- diction pending implementation of the terms of this award. DATED at London, Ontario, this 26th day of August, 1986 rts, Vice Chairman Member A. Stapleton Member