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HomeMy WebLinkAbout1987-1523A.Powers et al.92-09-29tMPICIESDt‘A CO”*OrwC DEL ONiilRLO CoMM,ss;oN DE SETTLEMENT, RiGLEMENT DES GRIEFS 1 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before ' THE GRIEVANCE SETTLEMENT BOARD BEFORE: FOR THE GRIEVOR FOR THB EWPLOYER I OPSEU (Powers/Smith/Hodgins) - and - Grievor The Crown in Right of /Ontario (Ministry of the Environment) Employer J. Samuels Vice-Chairperson G. Majesky Member A. Stapleton Member N..Wilson Counsel I Gowling, Strathy 8 Henderson Barristers 8 Solicitors D. Costen Counsel Legal Services Branch Management Board of Cabinet June 26, 1991 January 9, 1992. February 11, 1992 2 The three grievors are hydrogeological technologists. Smith and Hodgins work in the Ministry’s Central Region, based in Toronto. Powers is in the Southwestern’ Region, based in London. By the time of our hearings, they were classified as Environmental Officer 4 (E04), and they grieve that this is not an appropriate classification for their positions. They seek reclassification either to Environmental Officer 5 (EOS), or to a new classification which would be appropriate.. The three grievances were.filed in 1987, at which time Smith and Hodgins were classified as Environmental Technician 4 (ET4), and Powers was at the Environmental Technician 3 level. Powers was later reclassified to ET4. And then all three were reclassified to E04 before our hearings. The grievors feel that they are still not properly classified. The grievors deal withgroundwater. In the Central Region, Smith is concerned primarily with the quality of the groundwater (is it polluted?); Hodgins is concerned primarily with thequantity of groundwater (is X interfering with groundwater to which Y is entitled?). In the Southwestern Region, Powers deals with both quality and quantity. Very briefly, the, grievors respond. to complaints about the quality or quantity of groundwater, and study the impact of various industrial, agricultural, and other activities on groundwater. They investigate situations and prepare reports; deal with members of the public, industrial concerns, and others; recommend remedial action; and prepare legal documents as may be required to effect remedial action (for example, Director’s Orders under the Environmental Protection Act);~ They are the Regional technical experts in evaluating and resolving groundwater problems (quality and quantity). The Union’s primary focus in this case is on the following words in the E05 class standard (which is appended to this award)-“act as 3 designated specialists for . . . ..regions (...designated specialists function in a specialty area within municipal or industrial solid waste / liquid waste / emission control / complex assessment surveys)“. It is argued. that the grievors are “designated specialists” in the areas of “liquid waste” and emission control” and deal with “complex assessment surveys”. This argument fails because, very simply, the grievors were never “designated” as specialists by the Ministry. The term “designation” contemplates a special process by which particular recognition is bestowed. This Board has already made this point in Hilts, 1376/H (Ratushny): “...we read the above passage from the class standard as contemplating the actual designation by the Employer of a position as being ‘specialist”’ (at page 3). This moves us to the central issue-is the E04 class standard appropriate for the grievors’ positions? The E03 and E04 class standards are appended to this award. It is necessary to consider both of them, because the E04 standard incorporates the lower level. In the opening ~paragraph of the E04 standard, we read that this classification covers employees who exercise the responsibilities of an E03, and, in addition, have advanced responsibilities. The Union argued that, in order to move to E04, an employee must do &l. of the E03 functions, and, in addition, bear advanced responsibilities. In our view, this is incorrect. The E04.is an E03 (no matter which of the functions is performed) with advanced responsibilities. If this were not the case, it is quite likely that one would be unable to find any employees who fit the E04 standard. Show us the employee who l investigates; l selects, operates and maintains specialized equipment: 4 l provides assistance to other Ministry staff in conducting applied research projects; a l bears advanced responsibilities and we will show you a superhero, a creature of mythical proportions. The E04 standard is not the stuff of fairy tales, but was written to cover real employees. Bearing in mind the incorporation of the E03 into the E04 standard, let us look at the critical elements of the E04 classification, which concern our grievors: . . The E04 classification “covers positions involving inspection, investigations and enforcement activities in the environmental assessment and pollution control field. In some positions they would conduct investigations to identify, monitor and report on sources of pollution of.....water,...and plan, organize and conduct assessment surveys and monitoring of the natural environment. With respect to pollution control occurrences, they could also effect corrective action by making recommendations for implementation of appropriate abatement measures, and initiate where necessary appropriate enforcement activity to ensure ..~ compliance with environmental legislation. They may also be responsible for providing emergency response to spiII contingency situation and plant process upsets, to monitor .and provide recommendations and/or remedial measures” (being virtually the whole of the first paragraph of the E03 standard); With respect to the “advanced responsibilities” contemplated for promotion to E04, the second paragraph of the E04 standard speaks of three possible types of advanced responsibility. The second of these fits our grievors-“They may be recognized senior environmental officers who have the ability and wide variety of experience to function independently and to assume 5 significant responsibility. They will exercise judgement and initiative to identify and resolve complex and contentious problems.” . With respect to “Knowledge” as a compensable factor, the E04 standard speaks of expertise and experience sufficient “to deal independently with a wide variety of unpredictable environmental problems”. With respect to “Judgement” as a compensable factor, the E04 standard speaks of working “under minimal supervision . . . . . . . referring to supervisors only in event of very unusual circumstances, and to advise on firogress”. With respect to “Accountability” as a compensable factor, the E04 standard speaks of being “fully accountable for independent completion of complex work”. With respect to “Contacts” as a compensable factor, the E04 standard speaks of dealing with a wide variety of people inside and outside the Ministry, private and public, expert land non- expert. There will be a wide range of types of contact-informal exchanges of information, enforcement activity, appearances in court or before tribunals. “In all contacts, the employee officially represents the ministry.” These elements of the E04 standard fit the grievors like an expensive glove, ~These elements cover all of the grievors’ activities., In its argument, the Ministry acknowledges that the grievors exercise their functions” at the top end of the Environmental Officer 4 level”. We could stop here and conclude that the grievers are appropriately classified as E04, but we think it is advisable that we say a word about the E05 standard. 6 To some extent, the Union’s argument is that the E05 standard is simply another step in a continuum, and that one must place each employee in the correct place on the continuum. It is argued that, in order to do this, it is necessary to consider the shades of meaning in the words used in the standards, particularly with respect to the compensable factors of Knowledge, Judgement, Accountability and Contacts. But, in our view, the Union’s basic premise is wrong. The EOS level is not simply another step on a continuum. As the E05 standard makes clear, in its first paragraph, it covers three particular types of position-“program implementation co-ordinators”, “designated specialists”, and “officers in the investigation and enforcement function”. The grievers do not fit into any of these categories. The E04 standard is the end of the line for most environmental officers. It is elastic enough to cover a wide range of expertise and experience. For employees like the .grievors, there is~no possibility of reclassification simply because of increasing complexity of the work, accumulating expertise. and experience-the E04 standard will accommodate them. In this vein, it is useful to recall a comment we made in Zakrewski et al, 90188 etc.: This Board does not write the class standards. It is management which has the authority to write the standards. This Board does not have the authority to set the level of compensation which. ought to be paid for the services of employees. It is the parties who bargain the level of compensation or the matter may be determined, by an interest Board of Arbitration. Our authority is simply to determine whether or not an employee is properly classified according to the existing class standards. If there is no appropriate standard, we can order that management must create an appropriate standard. (at page 18) 7 Management provided in the E05 standard for “designated specialists”. Management may designate specialists as it sees fit. If the Union is unhappy with the fact that very few employees with acknowledged expertise and specialization have been designated as. specialists, then the Union has every right to bargain for a higher rate of pay for the classification in which these employees fiid themselves. In conclusion, we find that the grievors are correctly classified and the grievances are dismissed. Done at London, Ontario, this 29th day of September , 1992. !‘I Dissent” (dissentE0 follow) G. Majesky, Member A. Stapleton;Member Thir class cov.rs positions involving lnsp~cc:on, invertf~r~ioor and tnforcrmenc rcclvicl~s ln chc wwlronmane~1 ~ss~ss~nc and poliuc:on concrsl field. In sm po~itionr they vould conduce invesel~~clonr ~0 ldcnc::y, monitor l d rmpatt on IO”~C.S of pollution of air, land, or “.ter, :x!zd:zs noise, and plrn, orgmiza and conduct .ss.ssmanc rurrr,, and aoni:aring of 12e *.p.lral cnvironmenc. YiCh r*rpcce to polluelon control occurrencet, :bey CCUiC allo l ffrcc correcclve~acclon by making reco~endaclons for ;q~Leeocnc~ciaa ci rpproprircr abaccmcnc taeasures, and fniciare vhtre ncecsr.ry rppropr?acc cnforcrntnc accivicy CD ensure complirnce vlcb anviroruuncal 1eqlrlac:on. ?-•y my also be responsible for providing cncrgcncy rcrponr. ~0 spill concixgenc~ . ricurcionr and plane process upsets, Co monitor and provide recocaaendacianr .rnd/or rcwdlrl measurCS. They my ?Wicu rnd proccrr 1ppiicrc:onr and ~re?arc C4rtlf:cJccr ,of Approval. TI;S clrra rho covers portcfons vbich are rrrponrfblr for the rrIecr:on, ~perrclon and mincrnancc of spccirlizcd, coqlex, rlrccronic, chcslcrl or scchrnfcrl rir, v~ccr or v~scev~cer monicor?ng equipacnc :n f:cld !ocrriox rrsuicing !n the produc., -‘on of validated data for use in rnvironmen:rl JSJCS~OIDC progrmr. They my also provide rrtircrnce co other rlniscry r:aif :o conduc’ing applied research projcCCr or rurvc,s Co cv~luacc ?iev ceclneic~y, Hcbods, and assess the nrcurai envfronmcnc. ?& compensable factora l c :Lis level ire typically rcflec:ed as follows: i. Knovladrc: A workfag knowledge of ~38 pr~nclplo rod prxrlces of !adu,tr:ai ane municipal environrruncal conerol, polluc;oa abrceunc, land use and conelngrncy rcrponr. prrcc’cer. Positionr ma, involve ~~knovledge of: lndurtrlrl procerras/municiprl water supply ryrt~sjrw~gc dirposai s7sCeos/agriCU1CUra1 aCClVicies/wasCe -nagePcnc/ground and surface r.car c~chnology/snvfroManc~l monfcoring l qufpwnc/courr procedures regarding l nforcenenc l ccivlrler. Knowledge of l nvtronwnt~l and re!r:ed I8~irl~rioa,r*gul~clon~, ministry polfclco, pracc1ces and rdminisrra::ve procedures is atso required. Good oral and vrlc:tn co~unicaclve skt!is and EICL are mandatory. i. Judqemcac: n York 1s perforscd under general suptrvfaton vich SON independence !FI the planning rnd exccucion of fi+d inspeccionr md surveys, co~irinc invcsclgicionr and cnforcemcnc ~ctlvity. Judgemcoc ?s also ex.rrc:sed ii cbe preparation of comprchcnsivc cechnlcrl reports, :nccrprec~cion of informscion and data. cbe developmanc of remedial reco~ndrrlons and &.a rcprc~cncing cCe min?acry .c public and ms’tlcipal ae*Cin~s, and before chr courts and ochcr quaal Judicial badtea. I Ia.%md jpIo0 I 3. 6. Inrpproprfrtr rreoanndrcfonr could rarult in raa~~mnrcr~ loss co tie ainfrtq or otbrr8 aad in 10~1 of chr.minlrt~‘r crrdibilf:7 rod prrrtigr. COnCaCtl: i CUSS STANOARCS TZCmfIW SLxvICz3 ReSOUxcZS SUPPORT senti CIIII bea .mVIPOfmLYrN. 01?1CZX I mfr class covers poritionr of cmplo7tes who, In addlc:on co cha rrrponsibilltler described in cba Lnvironmencrl .OffIcer 3 standard, rxerciss advanced r~sponribilftler across a range of several areas in cb l nvironnancr md pollution conerol field. T!wy .say function aa group leaders providing technical dirsccion, co+rdinacing.and reviewing Cbr sdf rcCfv%cics, assigning rnd cvaiuac!3g cccbnie~l vdrk, and inscruc ring in technical training programs. ~1~0, ix L group IeJder role, they ma7 prrt!cl>acc II a trchnicrl advisor on aelec::on bards and in the pcrfomncc q anagmnc process b7 pcrfaning,such duties as advising on training and certificrcion courses and work objeecivcr, and oay'be rrsponr~fble for r~comending the purc!mra of rpeci~lfrcd wnfcor:xg equipacnc md thr relrcc:on of rpproprlrcc sftrr; 3 chry m7 be rrcognlred senior rnvironmencal offkerr who have chr rbflic7 and vfda varfrcy of tqeriencc :a function indcpendcncly rnd CO asmae rfgnfficrne rrrponrfbilicy. T&7 vll! exercise judgment and inl~irclvc co identif7 and resolve complex rad concrncfous problem; z in cbe advanced invcrcfgrclon and cnforcencnc function cb’ey sly perform IC rn l ncrJ,lrvcl In vhicb cbc7 gain crrinizg axd experience i:! both fields. The compensable factors ac thfr level arc r:r;r:cai!y rcflccced 1s follow: 1. Knovtednc: c.. vork requires chc cecbnfcal expertise, f!exibfl:cy and dc?cb of. I background co deal independent17 vlch a wide variety of unpredic:ablt rnvironmncal problems, L-L=+= vhcre cbc individual’s knovlrdgc ply be :lc on!? dlacm guide co act?on. Oemonscratad leadership, coummicacioo si:!is and l good knowledge of a vfda varier7 of -cnvironrwncal and related Iegislrcion and rrgulatlonr.rre erranci~l. In sow porlcionr vhic5 <.cai vlch’ lnrtrumcnt~clon a proven ccchnlcrl proficiency is required. 2. Judqctscnc: York is pcrfomed under niniml supcrvirlon. ,‘udgemenc is c~nplo7cd :a co-ordlnace chc nectsrar7 h-n, ratrrirl and/or fnfonsclon rc~oucccs and CO organire studier, ~~-7s. in~vclclg~c:ons~of comp1aincs 0: 1nrpccCions independently, referring co supervisors on17 in even: of vcv unusual circumstances, and co advise oo progress. Judgetine is exercised in rppl7ing general technical principles :O new problems which do not respond co precedent or cscablishcd~prac::cr ana vbcn representing the minlsrq ac public mecfngs, hcarfng~ 0~ :z dealings vfch media. In some positions judgment is also rcqu::ed when: :ccomcnding appropriacc clcm-up acclon,aE rpllls/eonslderi~8 recomrndacions for leg.1 acrion/fnterprecing legi~l~~l~n/rcvl~v~~~ reports and recomncndaclonr of orher cechnlcal sraff. Xavi-ral Offfear 4 boc’d. i. Accountabtlitv: IZIer8 posicioor are full7 recouncablr for IndepmdenC ccapl8t:on of complex work, for tha crchnical guidance and coordination of acc:oos of ochrr rrrignad staff, for Cba cmchnicrl rccurrc7 rnd.quriftT of drcr eollaccad or produced and for compr~hawivc trchnical reports vi:3 rrcomondatlonr aa a result of their decirion on necerrrr7 infomcioa, for fornrc rnd content of reports and rpproprirtrnesr of racownd- atfonr; and in some positions for the purchase, fnrtrllacion and aaincrruncr of complrx monitoring equipmoat. Paports are auicrble for dirtrlbucloo oursldr the minirtr7 afeet only grneral rrvlev b7 the rupervis,or. Imppropriacr reconmndarlonr could result- in soma monecaq loss to chr oIniitrJ or ochcrr and in loss of the nInfrc~‘s c:edib:l?c7 and prestige. Contacts: Work involves 1 wide VarIeC7 of continuing concicts vitb gove~1ae~c~1 and fndurcrirl offfcirlr at the opcracionrl, ttchnic~l,profrriionri rnd Prnagmmc Ievel~, rlccttd officiali,- general public. cba media, 1 conrultmcr, developers, concraccors, hcalcb.officialr, c~chnfcal; rcfrnclfic and rnginccring officials of cha minircq, ochrr provincial ~lnircrirr, ehr Cove-nc of Canada rad~incrraacional agencies. The conca~cs are for the purport of exchanging laforrcion, .giving rdvica, publishing lncerprrtrcive data, uklng rwwxmndacloas, p!ann:ng co-operative studies, or enforcing r~~ulaclons. Tbe7 u7 be ul!rd :o give rvideacr on crchnicrl ucfara or to appear as aa rxpert vlcarsr before ~dmlnfrerativr tribunala .ruch as the Lnvironmrxal Assesrp+ac Sorrd or a courf of law. Tbe7 ma7 be required co aaka prrsencacloar ac public r*tingr or reprrr*ne ebe sinfrtq on citis~nx’ lfrilon comitca*r. In all concaccs, chr rmplo7ee officIall7 rtprrsancr rhe r1nirtrJ. c *p--- ..__._ - ,., m 3. 4. In posirioar alIocae~d co ehir -1~~1, l nphy~r .r. full7 accouncabIs for: ewrdinarion of prosram and rcaff/daclrionr mada rich res9,ct eo uccers lnvolvin$ arsaa of ex9errira/prrparacion and rrvirv of rrports/preparac:on l d rrrcucioa of pros~cuclon 9rclger. Inrpproprlacr rrc-ndaclons/ inadequate rschnfcrl findings or incomplrcr documncaclorr of tvtdencr could result in considerable financial losses co chr miniscry and co ochtr prrrlar rnd loss of chr ministry’s cradibilfc7 rnd prrstlgr. Concsces: The wrk involves a vidr variety of concinuiog con~xer virh govtrn~~ncrl and industrial off!cirla/rC chr operaclonrl, iechnieal, profarrlonrl rnd manqananc Icvrlr/court and ochrr rnforcenrnc agrnclrs/rlrccrd offic:rls, the general public, tbr udir, consulcaner, developers, concractorslhc~lt~ officials and techalcal, scirnclf!c and engineering offlcfalr of the afnfscry, other provincial ainirtrlrr, the Cwrrnmmc of Canada rnd intrrnrclonal rgwcirr. Between OPSEU (powers, Smith and Hodgins) File Jkunbers 1523187 and W34/87 and lk Crown in Right of Ontario flW.nhy ofEkironment) cJNrON N0ltYmm DISSENT As the union nominee in this matter, I have reviewed the award of the board, and respectfully disassociate myself from the views of the majority and dissent for the following reasons. In this case, the three grievors sought to be classified at the Environmental Officer 5 level on the basis that they are each “designated specialists” within their respective regions. The majority made a finding of fact, and saw fit to put it in bold type in its decision, that the grievors are the “regional technical experts in evaluating and resolving groundwater problems (quality and quantity).” In fact, the evidence was overwhelming that the grievors are specialists and are regarded as such by the employer in these areas. It appears from page 3 of the decision of the majority that the only reason that the majority rejected the argument that the grievors should be classified at the EO-5 level is that they were not &sianated as specialists. In dealing with the argument that they should be classified at the EO-5 level,~ the majority of the panel stated: “This argument fails because, very simply, the grievors were never ‘designated’ as specialists by the Ministry. The term ‘designation’ contemplates a special process by. which the- particular recognition is bestowed. This board has already made this point in Hilts, 1376/88 (Ratushny). “...we read the above passage from the class standard as contemplating the actual designation by the employer of a position as being ‘specialist”’ (at page 3.1 That the majority rejected the classification of the grievors solely on the basis that they were not designated is further supported by the last paragraph of the decision where the majority invites the union and the grievors to utilize the collective bargaining process if they are not satisfied with the failure to designate positions as “specialist” positions. The rejection of the grievance ,on this basis by the majority is wrong both in law and in principle. First, the portion of the decision from !I!&, supra, cited by the majority is a clear misreading of the Hilts decision. Given that the written argument of the union and the grievors clearly pointed out the full text of the relevant passage from !$t,~, we can only assume that the majority has deliberately decided to depart from the full rationale of the Hilts decision. The relevant paragraph from the Hilts decision, including the portions not cited by the majority in this case, is as follows: “After the filina of this arievance. the Ministrv develooed ouidelines for the desicnation of a oosition as an Q environmental officer five technical soecialist. uite aoart from thauidelines, we read the above passage from the class standard as contemplating the actual designation by the employer of a position as being ‘specialist’. Clearlv. the ariev rs’ oosition has not been so desianated. Nevertheless, o we must ao further to enauire whether the arievor functions in hi s oosition in the same manner as a ‘soecialist’ as described in the EO-5 class standard. If so. we would be obiiaed to order the arievors’ oosition be reclassified to an aoorooriate hiaher level and the ootion could be aiven to emolover formallv to designate the oosition as being I ialis ’ t under the existina class standard.” soec The &~Js case stands for the proposition, and quite properly so, that even if the employer has failed to designate a position as being a “specialist” positicn, the Board must still determine whether the grievors function as “specialists” as described in the EO-5 class standard and, if so, it is only proper to classify’the grievor appropriately. Thisaspect of the decision in Hj& conforms with the well established jurisprudence of this Board. These cases are correct in principle and it is in this latter respect that the decision of the majority is also at fault. That is, to deny grievors who otherwise fulfil all of the requirements of the EO-5 standard, the right to be classified appropriately at that level simply because the Ministry has failed , neglected or refused to designate them is, in the words of the Divisional Court in OPSEU and Carol Berrv, et al. v, The Crown in Riaht of Ontario (Ministrv of Communitv and Social Services) Court File No.: 607/85 at p. 13 “to empty the grievance procedure of any meaning.” That is, while the grievors are required to, and do in fact perform all of the functions at the EO-5 level, it left to the whims of the employer as to whether they should be designated as “specialists”. Leaving the classification of employees simply to the whims of the employer in this manner cannot be done; it is fundamentally contrary to the right of employees to grieve their classification. In this regard, I also note that the designation guidelines were introduced unilaterally by the Ministry of Environment in 1989, some three years after the grievances and some two years after the Environmental Officer series was introduced by the Civil Service Commission. The uncontradicted evidence was that the Ministry has never designated as a “specialist” pursuant to these guidelines. I am mindful of the remainder of the majority’s decision in which the majority states that EO-4 standard describes what the grievors do. However, while that standard may in a general sense describe their duties, quite clearly the EO-5 standard is a better, fuller and more accurate description -- it is the best fit in describing the grievors. This is implicitly acknowledged by the majority in their finding that the g~!y reason for rejecting classification at the EO-5 level is the simple fact that they were not “designated” and the invitation in the last paragraph of the award to remedy the inequity of failure to designate positions as “specialist” positions through collective bargaining for better wages in some other classification. Thus, although finding as a question of fact, as they must, that the grievors fall within the EO-5 standard, the majority proceeded on a basis that is erroneous in law, in principle and not in keeping with the jurisprudence of this Board. But for these errors, it is undeniable that these grievances would have succeeded and they should be allowed. Respectfully submitted by, UL.TANT SERVICES GMlmg MARKHAM, Ontario October 1. 1992