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HomeMy WebLinkAbout1988-1376A.Charbonneau.90-10-31 ON~ R~O EMPL 0 YES DE LA COURONNE CROWN EMPLOYEES DE L 'ON GRIEVANCE C MMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~80 DUNDAS STREET WEST, SUt~ 2r~, TORONTO, ONTAR~. MSG 1Z8 TELEPHONE/~LE~O~E: (~ 16) 326- ~3E8 180, RUE DUNDAS OUEST, BUREAU 2100, TO~ONTO (ONTARIO]. MSG IZ8 FACSIMILE/T~L~CO~E : (~6~ 326- 1376A/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE S~TTLEMENT BOARD BETWEEN OPSEU (Charbonneau) Grievor - and - The Crown in Right of Ontario (Ministry of Environment) Employer G. Simmons vice-Chairperson E. Seymour Member D. Daugharty Member ~OR TH~ A. Ryder GRiEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE C. Osborne EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors HEARING March 7, 1990 May 8, 9, 1990 2 The grievor claimed that he is incorrectly classified as an Environmental officer 4 and seeks to be reclassified to an appropriate classification such as Environmental Officer 5 or Technical Manager 16. He seeks this reclassification to be retroactive to January 1, 1986. At the commencement of the hearing the Union submitted a Factum On Behalf Of The Grievor setting out what the Union considers to be a statement of facts in connection with the grievor's case. That statement reads as follows: 1. The grievor has for many years held the position of "Special Survey Technician" in the Equipment and Monitoring Section of the Technical Support Group of the Ministry. This requires him to design, install, maintain, troubleshoot, modify' and resolve technica~ problems relating to instruments and machines which monitor the quality of emissions from equipment. 2. By Decision dated January 4, 1982 in GSB#435/80, the grievor was re£classified from an Environmental Technician3 to an Environmen- tal Technician 4. This Decision recognizes a difference in substance between the field technicians, classified as ET-3 who were responsible for monitoring and limited maintenance of air quality equipment from the grievor whose responsibilities respecting the equipment are, as noted, more extensive. 3. In the Fall of .1978, the Ministry installed a computerized system of air quality monitoring called the Telemetric System in its Northeastern Region. The greater complexity of the Telemetric System resulted in dramatic changes in several ingredients of the job criteria relating to the. work performed by the field technicians classified as ET-3o The field technicians in the Northeastern Region grieved and in Tremblay and Neve (GSB#528/83, 529/83) the Board elevated their classification to ET-4 in an award dated October 17, 1984. 4. Subsequently, the Telemetric System was introduced in all Regions of the Ministry with the result that field technicians throughout Ontario are [sic~ responsible for monitoring the telemetric system were .re-classified to the ET-4 level effective October 1, 1986. 5. The introduction of the Telemetric System throughout Ontario has also resulted in changes 4 in the ingredients of the job criteria relating to the work performed by the grievor so that it can no longer.be said that the grievor is appropriately classified as an ET-4. 6. In addition, the ET-4 classification for the grievor fails to recognize the distinction between him and the field technicians in respect to: (a) the technical duties and respo- nsibilities of the grievor; (b) the supervisory respon- sibilities of the grievor. 7. The inappropriateness of the ET-4 classification was discussed between the grievor and Mr [sic] Frank Reinholz, Manager of the Equipment and Monitoring Section of the Technical Support Group. 'At that time, the introduction of a new series, the Environment officer series, was contemplated. In this discussion, Mr [sic] Reinholz promised a re- structuring of his section so that the difference between the grievor and the field technicians would be recognized. 8. Subsequently, the Environment Officer series was introduced to replace the Environment Technical series and all employees, including the grievor and the field technicians at the ET-4 level were converted to the EO-4 level. 9. The grievor, therefore, claims that he is improperly classified for the reasons set out in paragraph 6. Until the respondent Ministry produces the Environment Technical series it is not possible for us' to ascertain if the grievor ought to be re-classified to the'EO-5 level or whether some other classification ought to be established. After reviewing the above statement, Counsel on behalf of the Employer agreed to paragraphs 1; 2; 3; 4; and 8. She, however, was not in agreement with the other paragraphs that are set out in the above statement. The grievor is currently classified as an Environmental Officer 4 (EO-4) with the Ministry of the Environment. He works in the Central Region which includes Metropolitan Toronto. He joined the Ministry in 1971 and in 1975 the Ministry introduced a technician series. At that time there were what is referred to as Field Technicians whose basic duties were to service and collect data from environmental stations where instruments were monitoring air quality. Between 1975 and 1980 the grievor's job evolved in a somewhat different way than the other field technicians in the Region. The grievor was more and more being assigned the duty of establishing monitoring stations and advising on the type of equipment to be installed as well as setting up new stations whereas the other field technician duties remained unchanged. By 1980 the grievor had concluded that the functions he was performing were different from other field technicians and as a result filed a grievance. Ak the .time he was ~classified as an "Environmental Technician '3" and his grievance was successful in that an arbitration decision being GSB #435/80 (Gorsky) allowed the grievance and ordered that his classi'fication be advanced to that of an Environmental Technician 4. The majority in the Gorsk¥ decision wrote a very detailed analysis of the differences in the work performed by Field' Technicians and those performed by the grievor. We incorporate much of what was said by the Gorskv decision which aPPlies equally to the evidence that was heard before the Board in the instant situation. We were informed that in the Fall of 1978, the Ministry introduced into the Northeastern Region a new computerized system which has been commonly referred to aS a Telemetric System. It is the most advanced device for monitoring or measuring various air pollutants. With the introduction of this new computerized system the work of the Field Technicians in the Northeastern Region became more complex. As a consequence, two Field Technicians, Messrs. 7 Tremblay and Neve filed grievances and sought to have their classifications advanced from Environmental Technician 3 to Environmental Technician 4 (see GSB file #528/83, 529/83). Their grievances came before a Board chaired by Mr. R.L. Verity, QC and that Board unanimously concluded that because of the technological change that had occurred the grievors were performing specialized work to such a degree that they qualified to be placed in the -higher classification Of Environmental Technician 4. It appears to be quite clear that in the Tremblay and Neve decision the two grievors were performing complex duties in connection with the Telemetric System. It appears to us that this was the reason for advancing the grievors in that case to Environmental Technician 4. The evidence that was presented to the instant Board clearly revealed that it is the grievor who carries out the complex functions in connection with the Telemetric System. He is the person who is called upon to set Up new stations in which he establishes the various monitoring equipment and gets the stations on stream. The other Field Technicians in the Central Region have not been performing the complex functions that~ the grievor has been performing over the years. In other words, the grievor sets up and gets a station operating following which other. Field Technicians take over the responsibility of operating the stations on a routine basis after the grievor has set them up and operating. Mr. Peter Austin, the grievor's immediate supervisor, testified that other Field Technicians are supervised more directly 8 on a day-to-day basis and they have to be assigned problems more regularly than is the situation with the grievor. Basically, it was Mr. Austin's evidence that the grievor is rarely supervised and instead he works quite independently on his own. Mr. Austin stated that when he has a problem in the field it is the grievor to whom he turns to solve the problem. Following the Tremblav and Neve decision the Ministry moved the Field Technicians in the Central Region from Environmental Technician 3 to Environmental Technician 4 in 1986. The grievor claimed that the work he was perfor~..ing was still more advanced than that of the other Field Technicians and he claimed he was improperly classified. He therefore filed another grievance claiming improper classification.. He also held discussions with Mr. Frank Reinholz, manager of the equipment and monitoring section of the technical support group. Mr. Reinholz is Mr. Austin's immediate supervisor. It was at approximately this point in time when discussions centred on the possibility of bringing forward a new series entitled "Environmental Officers" and that the Field Technicians as well as the grievor would be classified as Environmental officers as opposed to Environmental Technicians. This eventually occurred and the Field Technicians as well as the grievor became Environmental Officers 4. While Mr. Reinhotz testified on behalf of the Employer during the course of these proceedings, Ms. Laurie Manoim, human resources consultant, Who was the person who evaluated the position specification and incorporated the Field Technicians as well as the grievor into one classification (Exhibit 6) did not take the witness stand to explain how she arrived at the conclusions in which she did. From the evidence that was advanced during the course of these proceedings, the Board is unable to understand any differences that have arisen in the work performed by the grievor and Field Technicians in the CentraI Region between 1982 and 1988 when the grievance was filed. Without going.into a factorial analysis, the Board has had an opportunity of looking at the class standards for Environmental Technician (Exhibit 4) and Environmental Officer (Exhibit 3). What stands out in the descriptions in these class standards is that Environmental Officers have, as a significant portion of their duties, the responsibility of enforcement in areas of environmental assessment and pollution control. Environmental Officer 3.states: This class covers positions involving inspection, investigations, and enforcement activities in the environmental assessment and pollution control field...[our emphasis] In the factor of Knowledge it is stated: A working knowledge of the principles and practices of industrial and municipal environmental control, pollution abatement, land use.and continqencv response practices... [our emphasis] Under Accountability: The incumbent is directly accountable for...initiating enforcement activity... [our emphasis] Insofar as Environmental Officer 4 is concerned the standard begins by stating: This class covers positions of employees who, in addition to the responsibilities described in the Environmental Officer 3 standard...in the advanced investigation and enforcement function they may perform at any entry level in which they gain training and experience in both fields... [our emphasis] Under Judgement there appears the following: Judgement is exercised in applying general technicial principles to new problems which do' not respond to precedent or established practice...in some positions judgement is also required when: recommendinq appropriate clean- up action at spills/considering recommendations for leqal action... [our emphasis] Under Contacts there is a reference to: Enforcing regulations. Insofar aS Environmental officer 5 is concerned there is reference to: Designated Specialists for branches or regions and Designated Specialists function in the specialty area within municipal or industrial solid waste/liquid waste/emission control/complex assessment surveys. It continues: Act as officers in the investigation and enforcement function who must make decisions independently, using only their knowledge, skills and experience as guides in such matters as collecting and analyzing 'evidence such as financial records/company books/waybills, gathering intelligence on violators and preparing and assisting Ministry lawyers with prosecutions. (our emphasis) In the respectful opinion of this Board the work performed by the grievor and Field Technicians does not include any enforcement nor investigations nor are they involved in "analyzing evidence" such as "gathering intelligence on violators and preparing and assisting Ministry lawyers with prosecutions". In our view, the grievor (and the Field Technicians) cannot be~ described as Environmental Officers because they do not perform any enforcement function and therefore in our view it is a misnomer to refer to them as Environmental Officers. The Board further agrees that the grievor is not a Designated Specialist which is a requirement for the Environmental Officer 5 classification and therefore he could not succeed in advancing to that classification. However, as we have stated, we do not believe that he is properly classified as an Environmental officer 4. In keeping with the practice of the Board, and pursuant to the decision of the Divisional Court in Carol Berry et al., unreported, March 13, 1986, it is our decision that the Ministry be directed to properly classify the grievor following which, should the ~grievor remain dissatisfied, we will retain jurisdiction to enquire into the reclassification that the Employer has carried out. Dated at Kingston, Ontario this 31st day of October 1990 Mr. C. Gordon Simmons Vice Chairperson Mr. Edward Seymour Member ~ "I DISSENT" (Dissent without writ~ten reason) Mr. David Douqharty Member