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HomeMy WebLinkAbout1986-0387.Messieha.88-08-15Y..l^lll- EMPLOYESDEL4 w”R*NNE CROWN EMPLCWEES OEL’ONTARIO GRIEVANCE CPMMISSION DE SETTLEMENT REGLEMENT ID DES GRIEFS IN THJ3 WA= OF AN ARBITRATIOW Under TNJ.4 CROWN tiLOYl3ES COI‘LECT~ BARGAINING ACT Before TEE GRIEVAWCE SgTlzEwEHT SOAR0 Before OPSEU (Samir Messieha) -and- The Crown in Right of Ontario (Ministry of Environment) I. Springate J. Anderson W. Lobraico For J. Mosher Counsel Gowling and Henderson Barristers and Solicitors For X. Brad Adams Staff Relations Officer Ministry of the Environment Hearina: October 5, 1987 Grievor Employer Vice-ChairmAn Member Member DECISION The grievor contends that he was improperly classified by. the employer as a chemical laboratory technician 2. He submits that he should have been classified as a technician 3, or perhaps even a technician 4. Prior to the filing of his grievance, the grievor was employed as a particulates technician with the air quality unit, environmental services division, Ministry of the Environment. He was subsequently moved out of this position when much of the work he had been performing was contracted out to a private laboratory. These Groceedings relate solely to the grievor's classification when employed as a particulates technician and not his. status .since that time. In support of the grievor's Pas ition, the union relies exclusively on a comparison of the tasks performed .by the grievor against the class standards set by the employer' for the chemical laboratory technician class series. In consequence, while we heard considerable evidence relating to the work performed by the grievor, no direct evidence was led with respect to the work performed by persons classified by the employer as a chemicals laboratory technician 3 or 4. The grievor holds a Bachelor of Science degree in physics and chemistry from Ain-Shams University in Egypt. Be commenced employment with the Ministry of the Environment in 1973. Be became a particulates technician in or about May of 1980. In this position he was responsible for analyzing air borne particles and classifying them -2- into 14 different categories of industrial pollutants. The samples analysed by the grievor primarily came from Hamilton and Toronto. When giving his evidence, the grievor described in some detail what he did when analysing a "complaint sample', that is a sample of airborne particles sent in by non-Ministry personnel. The grievor testified that he had performed work on complaint samples until his job disappeared, although the number of such samples had "thinned considerably" after he filed his grievance. On the basis of evidence led by the employer, however, we are satisfied that all work on complaint samples was moved away from the grievor's work area at least two years prior to the filing of the grievance. In these circumstances, we have not relied on any of the grievor's evidence relating to his work on complaint samples. At the time of the filing of the grievance the grievor's primary task was to analyze dustfall particles. A network of six inch diameter jars had been set up to collect settleable dustfall particles. At regular intervals polyethylene liners in the jars were collected and the contents treated so as to break up the particles. Most of the samples were then analysed only for their metal content. Approximately 20 percent of the samples, however, were turned over to ~\ the grievor. Using a microscope he was responsible for determining the percentage breakdown of the particles by reference to the 14 different categories referred to above. 'The grievor was the only technician to perform this task on a regular basis. I . -3- I I The grievor received each sample he was to analyze on a separate piece of filter paper. He was not required to look at all of the particules on each filter, but only to select an appropriate field of view. This could be achieved by looking at 4 or 5 fields of view and then selecting one which appeared to be representative. Using a .icroscope he would then count 100 particles and seek to identify and classify them. To do so, he would at times have to isolate a particular particulate using a magnetic needle. In most cases the grievor would immediately be able to identify the particules he was looking at on the basis of their size, shape and colour. If not, he would refer to a copy of the McCrone Particle Atlas to assist him. He might also refer to a slide library of particules which he had started and maintained. If still uncertain as to the composition of a particle, the grievor might subject it to a chemical spot check or ask that it be sent out for special analysis. The grievor entered hie findings on a work sheet. The employer did not require total accuracy from the grievor. According to Dr. Brian Foster, who at the relevant time was the supervisor of the air quality unit, a variation of 20 percent between how the grievor categorized particles in a sample and how another person might do so was quite reasonable. The grievor testified that he worked under "nil" supervision. The evidence, however, establishes that while the grievor was not directly supervised when looking through a microscope, he was assigned work by a technician 4 and in turn was responsible for providing this ician with his f indings. The grievor did not supervise anyone techn else. The relevant class standards indicate that a chemical laboratory technician 4 is generally someone who is responsible for the supervision of a large group of technicians. As already noted, the grievor had no supervisory responsibilities. A technician 4 might also be a non-supervisory specialist who performs specialized and intricate examinations where the procedures followed and the techniques employed require a sound knowledge of scientific methodology and who usually provides an interpretation of the test results obtained. We are satisfied that the work performed by the grievor was not of a level as to bring him within this category. There is some degree of overlap between the work performed by a technician 2 and a technician 3. The preamble to. the relevant class series contains a lengthy discussion of the different types of duties performed by these two classes of technician to which we might usefully refer: "Common" tests and procedures are defined as those which do not require exceptional knowledge, skills or judgment in their performance because the methods are fully prescribed, the manipulations are not difficult to perform and the results are readily recognised. Such tests are learned after brief instructional demonstrations and the employee's performance improves as manipulative skills and familiarity with work pr,ocesses are acquired through experience. This category may be further sub-divided into "simple" and "standard" tests and procedures. As a general rule the performance of a limited number of "simple" tests on a production line basis, following prescribed procedures, would result in allocations to the Technician 1 level. The performance of a number of "standard" tests where the methods are fully prescribed but the variety is more dispersed, some elementary judgments are made and supervision is not closely applied except when new procedures are used or problems develop will generally result in allocations to the Technician 2 level. -5- "Complex tests and procedures are defined as those which require highly developed skills, judgment and experience in their performance because results may be confused with others of similar qualities. Procedures may require modification due to differences in batches of ingredients as determined by results with controls. Tests may be "complex" for different reasons, thus this category may be sub-divided into "difficult" and "intricate" tests and procedures. "Difficult" in this context refers to tests and procedures, the performance of which require judgment in the selection of alternatives and variations to standard procedures, the careful execution of a series of exacting manipulations of materials and apparatus, the operation and minor maintenance of sophisticated and sensitive laboratory instruments and the accurate recording of procedures and results. The performance of a variety of difficult tests would generally result in such positions being allocated to the Technician 3 level. "Intricate" in this context means those tests and procedures which require a large number of operations with many possible sources of error at various stages and require a high degree of skill and judgment in such functions as: - utilising reference sources to determine modifications of apparatus and variations of procedures: selecting, modifying and adapting test procedures to obtain optimum results; recognising and interpreting reactions which are difficult to observe and which can significantly affect the outcome of the test; and computing or interpreting .interim and final test~results which require the application of advanced mathematical techniques and a sound knowledge of scientific methodology. The proper performance of "intricate" tests and procedures requires an understanding of scientific processes at the professional level and employees performing such tests would normally be a Scientist, but they may, in the absence of qualified professional staff, be performed by a higher skilled and experienced Technician. "Specialty" tests and procedures are defined as those which are carried out without definitely outlined methods, usually requiring frequent modifications, and where special or modified apparatus or equipment is utilized. Interpretation of results is based on knowledge and experience or on a comparison with standards from reference laboratories. Tests and procedures of this nature are usually found in research settings and normally are closely directed by professional personnel but the technical work of a sub-professional nature is conducted by experienced technological staff. Employees in -6- positions of this nature would-normally be allocated to the Technician 3 level. The grievor's task of counting and identifying particles cannot reasonably be regarded as the type of "intricate" or "specialty" procedures generally performed by persons classified as technician 3. In addition, he did not- perform a variety of different tests and procedures and accordingly did not qualify as a technician 3 on that basis. The remaining issue is whether the work he performed in identifying and grouping particules was, by itself, sufficiently difficult so 'as to reasonably be viewed as a "complex" procedure. On Che evidence before us, we believe not. While the grievor was required to exercise some degree of judgment,- such as selecting a representative field of view, he was .not called upon to select alternatives and variations to standard procedures. Nor was he required to follow procedures which required a large number of operations with many possible sources of error at various stages. Rather, his duties appear to have involved, the type of "standard" test or procedure which the class standards associate with a technician 2. In these circumstances, we are satisfied that the grievor's work classifying particles contained in dustfall samples did not warrant him being classified as a technician 3. This brings us to a second aspect of the grievor's work. Looking through a telescope can be very 'tiring to the eyes. Accordingly the practice is not to assign someone to that task for an entire working day. The evidence is that the grievor spent a maximum of.60 percent of his time working on dustfall samples using a microscope. Much of , - -I - the remainder of his time he spent working on various projects. According to Dr. Barry Loesher, at the time a manager in the Ministry's laboratory services branch, the grievor was assigned to these projects because he had allergic reactions to solvents and acids and also because there were problems finding work which the grievor was happy performing. Dr. Brian Foster, the supervisor of the air quality unit, however, testified that the grievor was given the project work, in part, to test his skills on experimental work. One of then projects worked on by the grievor involved the >reparation of a report outlining the work he performed with' particules. A similar report was required of all other technicians in his work area. This was done so as to enable management to review the work methods being utilized by staff with a view to possibly updating those methods. Given that in his report the grievor was only required to record what he actually did, and the methods he utilized, his work on the report can be viewed as an extension of his work in identifying particles and, as such, did not warrant a different. classification rating. The same is not true, however, of the other projects assigned to the grievor. One project, which was assigned to him by Dr. Foster, involved a study of the feasibility of coating particules with ,a protective coating and then placing them in an even suspension for elemental determination by a method referred to as "XRF." According to the grievor, the preparation of his report required that he investigate existing techniques and perform various experiments over a six month period. In his report the grievor proposed the use of a iarticular type of wax coating and also drew a diagram of an apparatus ,hich, if constructed, could be used to obtain a uniform distributi.on af particles in a suspension. The grievor's proposals were not implemented. Another project assigned to the grievor arose out of complaints relating to a fine air borne powder found in the vacinity of both a barley grain mill and a soya mill. ,Each of the mills blamed the other for the situation. After studying the matter, the gr,ievor proposed a process by which to ascertain which of the mills was responsible for the emissions. The project took the grievor about a year to complete. By the time it was finished, both mills had closed down and, accordingly, the 'grievor's proposals were not utilized. It was the grievor's uncontradicted ~evidence, however, that the procedure he developed could be used in other situations. The grievor's report was submitted to a research advisory council, to see if funding could be obtained for follow-up work. The council, however, declined to recommend such funding. The grievor testified that he also assisted in a study of volatile arsenic. He testified that in addition to performing some sampling and analysis work, he did library research and theoretical work which resulted in him developing a technique which would allow a volatile compound to be protected by freeze drying it. The project in question was apparently cancelled in its entirety and no steps taken to implement the grievor's proposals. At one point Dr. Foster also assigned the grievor to investigate the possibility of extending the . ...’ .’ :. . i.‘. c - 9 - :fe of tantalum lining used in a graphite furnace. The grievor I Icountered so many difficulties with this project that at his request 1 was discontinued. I None of the grievor's proposed techniques were ever implemented. IS this regard, Dr. Loesher described the grievor.'s work as being 'remarkably unsuccessful." Nevertheless, the fact remains that the grievor was assigned projects requiring that he engage in independant >tudy and research and prepare reports proposing possible new techniques. The fact that none of his proposed techniques were ever implemented may speak to the usefulness of the projects assigned to the grievor and perhaps the quality of the grievor's work. It does not, however, detract from the fact that this type of work was assigned to the grievor by~management. The nature of the project work performed by the grievor, and the time he spent on it was. we believe, sufficient to remove him from the class, standard for a chemical technician 2. The difficulty we face is that he did not fall within the definition for any other level of chemical technician either. While the class definition of a technician 3 makes reference to employees who assist in support of an experimental or research.programme, it indicates that they do so by performing associated tests. The grievor's projects, however, primarily involved the formulation .of proposals for 'new procedures, although he did perform certain related laboratory testing. In the result, we are led to conclude that the grievor was improperly classified 'as a technician 2,'but did not fit within the class standard for any of the other levels of chemical technician. In 1 i I , - 10 - e normal course we would remit this matter back to the employer to I iassify the grievor in some other existing classification, or to 'velop a new classification which describes the grievor's functions. Se: Anous et al 203/84 (Brandt). In that the grievor is no longer in the position discussed in this decision, however, and no one else is performing a similar function, the parties may wish to see if the ratter can be resolved in a less formal manner. k7e will remain seized of this matter in the event they are unable to do SO. sated at Mississauga, this 15th day of August, 1988. 1: .Springateb Vice-Chairman W. Lobraico - Member