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HomeMy WebLinkAbout1989-0989.Kuhnke.90-07-03 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPL O'YEES DE L'ONTA RIO GRIEYANCE C,OMMISSlON DE SE'n'LEMENT REGLEMENT BOARD DES GRIEFS t~0 DUNDAS STREET WEST, S~J)TE 2100, TORONTO, ONTAR~. M5G IZ8 TELEPHONE/TEL~-PHOIVE: (4 r6; 326- h~O, RUE DUNOA$ OL.tEST, BUREAU 2 ~00, TORONTO (ONTARrO). MSG 1Z8 FACSiI~ILEIT~'L~COPfE : (4 ~6] 32~;~ 989/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Gr~evor - and - The Crown in Right of Ontario (~inistry of Transgortation) Employer - and - R. L. Verity vice-chairperson M. Vorster Member D. Montrose Member FOR THE D. Wright GRIEVOK Counsel Ryder, Whitaker, Wright & Chapman Barristers &~$olicitors FOR THE' M. Failes EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING: February 20, 1990 February 21, 1990 ' ONTARIO EMPLOYES DE LA COURONNE CROWN EMP~. 0 ¥£ES DE L 'ON TARIO GRIEYANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO. ONTARIO, MSG ?ZS-SUITE 2100 TELEPHONE/TELePHONE 8 9 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Kuhnke) Griewor - and - The Crown in Right of Ontario (Ministry of the Attorney General). Employer BEFORE: R.L. Verity Vice-Chairperson M. Vorster Member D. Montrose Member FOR THE D. Wright GRIEVOR: Counsel Ryder, Whitaker, Wright and Chapman Barristers & Solicitors FOR THE M. Faites EMPLOYER: Counsel Winkler, Filion and Wakely Barristers and Solicitors HEARINGS: February 20, 1990 February 21, 1990 OECISION The grievor, Rolland Kuhnke, works as Foreman Soils, Aggregates and Concrete in the Ministry's Regional Laboratory at Kingston. He alleges improper classification as Technician 4, Physical Laboratory and seeks reclassification as Technician 5, Physical Laboratory. The Parties agree that the grievor's duties are reasonably reflected in a Position Specification and Class Allocation Form dated August, 1986. Those duties are as follows: t. Co-ordinates and provides technical expertise to technicians assigned to soils, aggregate and concrete labs within the Regional Laboratory by; - Reviewing work load with supervisor to establish priorities and work distribution in lab - Prescribing duties assigned by supervisor to technicians qualified to perform the specific tests related to soils analysis, aggregates prequalification testing, aggrega(e production, quality assurance, petrographic analysis, concrete mix ~esign and quality assurance of aggregates and test specimens from concrete production - Advising the .laboratory supervisor of manpower requirements as the workload fluctuates - Checking test results and requesting further 'testing where required - Checking calculalions of concrete mix designs for accuracy and making preliminary design adjustments - Maintaining an accurate record of equipment and materials 85% and assuring stocks .are replenished to avoid production delays - Ensuring an accurate record of all tests and samples processed'by the soils, aggregates, and concrete laboratories and reviewing results with supervisor - Providing technical guidance and advice to staff in new or revised procedures and methods of conducti~ tests - Solving difficulties or providing solutions for contentious test results presented by staff - Assuring proper maintenance of testing equipment, established test procedures, safety precautions and calibration of test equipment - Assuring the retention of materials to ensure safety and availability 2. Provides supervision and training of technicians by: - Training the technicians in established test procedures and techniques to be employed and in the care and operation of all laboratory equipment - Instructing in the necessary safety precautions and procedures in the o~eration of equipment and handling of hot samples and toxic chemicals and acids - Performing such personnel functions as assessing the capabilities of summer students and contract staff, 10% maintaining discipline, preparing appraisal forms and attenaance records and performance budget for labs - Directing the activities of technitians and contract staff employed during summer and peak periods - Assigning the testing to the t6chnicians for each phase of, and training them in tests peculiar to special projects 3. Performs other relates duties as: - Lecturing during courses of instruction and laboratory tours and demonstrating test procedures and use of equipment - Preparing special samples ~or co-operative testing and correlation programs ~ Verifying time sheets - With Bituminous Forman/Woman assume responsibility ~or 5% the operation of the Regional~Laboratory in the absence of the Regional Laboratory Supervisor - As assigned The grievor has been employed with the Ministry since June, 1961. He was transferred to the Regional Laboratory in Kingston in 1975 and obtained his current classification in 1985 or 1986, Mr. Kuhnke is one of two foremen employed at the Regional Laboratory. Bot~ foreman report ~irectly to Regional Laboratory Supervisor Ken Lee. Mr. Lee is classified in the management position of TM 16 having been removed from the bargaining unit position of Technician 5, Physical Laboratory some years ago. The grievor and foreman Doug Best have separate areas of responsibility within the Regional Laboratory and independently supervise up to four technicians, and on a seasonal bas~s contract staff and summer students.~ The grievor has sole responsibility for the soil laboratory, the aggregates laboratory and the concrete laboratory. Mrs. 8est as bituminous foreman has similar responsibility in the asphalt mix lab and the extraction lab. The preparation lab is an area of shared responsibility between the two 7oreman. Apparently, the Kingston Regional Laboratory structure is typical of ail regional labs operated by the Ministry. In his designated area, the'grievor is required to perform and supervise a variety of "standard" and "difficult" tests to determine the physical characteristics of 'soils, sand and gravel and concrete used. in highway and bridge construction. In most cases, the tests are performed with the assistance of sophisticated equipment. The tests are established procedures of long standing duration which are specified in the various Ministry procedural manuals. These standardized tests are..performed in every region of the province. The evidence established that the tests have not varied in any significant degree over the past 25 years. In 1979 when the new Kingston Regional Laboratory was opened,~some 10 concrete mix design tests were performed for the first time. However, several years ago, these tests were discontinued and given to the private sector. At the same time, four admixture tests were required to be performed.by the Regional Laboratory. Mr. Kuhnke testified in some detail as to his actual duties in all areas of assigned responsibility. In addition,-he is responsible for two special projects - the inspection of four facilities which produce pressure treated timber and the taking of water samples and the corrosion control of water pipes at a service centre near Kin§sion. The Union called one further witness - Roger Northwood, Manager of En§ineering materials at i~he Downsview head office. He testified that at the' central laboratory at Downsview there are 12 foreman each with assigned duties in. a specific laboratory. The one exception is the concrete laboratory which has three foreman assigned designated tasks to equalize the workload. In cross-examination, Mr. Northwood stated that organizational structure of the Kingston Laboratory .was typical of regional, laboratories throughout Ontario. Apparently, the Downsview central laboratory performs the same standardized tests 'that are performed by regional laboratories. However, in addition, the Downsview tab performs more complex tests ~nd develops new testing methods. The thrust~of Mr. Northland'S evidence was that the central laboratory is involved in a wide range of tests that are not performed at the regional level. '- The Employer called no evidence. At the request of the Parties, the .... ?anel took a view of the Regional Laboratory at Kingston on February 20. The grievor challenges his current classification under the Class Standards approach. The relevant provisions of the Physical Laboratory Technician Class Series reads as follows: PREAMBLE PHYSICAL LABORATORY TECHNICIAN CLASS SERIES Kinds of Work Covered. Positions covered by this class series provide a technical service to the engineering and scientific professions in a variety of physical laboratories throughout the service, i Incumbents of position in this class series perform or supervise the performance of a variety of tests and procedures involving the determination of the strength, durability, composition and physical characteristics of a variety of materials. All testing requires careful attention and accuracy of a high order and is undertaken to provide a technical service to a government department or to industry, for the purpose of quality control and/or research. Class Allocations and Definition of Terms These positions encompass a wide range of technical duties and technical complexity; technical competence and the supervision of subordinate staff are asPects to be considered in the allocation of positions. Supervision of other : Technicians or other laboratory staff is usually the governing factor in all allocations to class levels above Technician 2. .The tests performed are classified into three categories of "simple" "standard" and "difficult". "Simple" tests are those which do not require exceptional skills, knowledge or judgment in their performance because the methods are fully prescribed, r i the manipulations are not difficult and the results-are readily ~ recognized. Such' tests are learned after brief instructional mm .i training and the employee's performance improves as manipulative skills and familiarity with the work processes are acquired through experience. "Standard" tests are those where methods mare fully prescribed but some elementary judgments are required in determining causes of deviations from anticipated results; supervision is not closely applied except where new procedures are used or problems are encountered. "Difficult" tests are those which require a series of steps in their performance according to'prescribed procedures; the use of sensitive equipment; the exercise of some judgment in the selection of alternativ6s and variations in procedures; and the detailed and accurate recording of observations and results. Positions involving the performance of a number of standard tests would normally be allocated to the Technician 2 level. Positions in which incumbents have responsibilities for a Specific test area and have line supervision over a few subordinates would be allocated to the Technician 3 level. In some cases where an employee is engaged in difficult testing related to research of development projects, the position would also be allocated to Technician 3. Both demonstrated supervisory and specialist technological abilities play an important part in the allocations to Technician 4 and 5 levels. Incumbents in positions classified as Technician 5 are responsible for a major testing program and supervise a large staff through a number of subordinate supervisors. In most cases incumbents of positions cl.assified as Technician 5 are performing at the professional level and such allocations may be due solely to the lack of qualified professional staff. July 1965 TECHNICIAN 4, PHYSICAL LABORATORY CLASS DEFINITION: Employees in positions allocated to this class, under the .direction of a supervisor of professional or equivalent status, are responsible for the operation of a laboratory devoted to investigating and testing in a specific field. These employees usually supervise a number of technicians and/or trainee technicians by assigning, scheduling and checking work and by providing'advice and assistance when problems develop. In addition they may perform the more demanding tests themselves and assist their supervisor in the initiation of new or experimental test techniques. They supervise a number of subordinates in the performance of a variety of difficult tests where the methods are ful-ly prescribed and results are readily recognized but some judgment is requi~ed in the selection of alternatives and sensitive laboratory instruments are often utilized. They are normally responsible for the requisitioning and control of all materials used in the laboratory and for the control and maintenance of all equipment used, recording and acquisition, use and disposition as required. They are " responsible for the recording of all test results and they prepare periodic reports in which laboratory test results are summarize~ and preliminary conclusions are drawn. QUALIFICATIONS: 1. Grade 12 education. 2.' At least ten years' of increasingly responsible laboratory experience as a Technician, Physical Laboratory or the equivalent, 3. Supervisory ability; keen powers of observation; analytical ability. July 1965 TECHNICIAN 5, PHYSICAL LABORATORY CLASS DEFINITION: Employees in positions allocated to th.is class direct a major section of the testin§ progran~ne involving the supervision of a number of technicians through a number of subordinate supervisors. Under the general direction of a senior professional supervisor they are responsible for developing the technical aspects of the testing programme in their specific field and for establishing and maintaining the procedures necessary to carry out the programme. They assign, schedule and direct the performance of tests and procedures, supervise the recording of test results and prepare periodic reports on the work performed. They evaluate test information and interpret test results, drawing conclusions and making recommendations to their supervisor. In most positions, in addition to the technical supervision of laboratory operations, they perform complex evaluative or developmental engineering or scientific studies requiring the utilization of a high degree of skill and judgment in the selection and use of reference sources; the application of mathematical techniques to complex problems involving the use of sophisticated formulae for calculations; the compilation and analysis of data; and the preparation of detailed reports. Their work is reviewed on the basis of results obtained and final'reports are evaulated on the basis of scientific adequacy. Also included in this class are the positions 'of regional laboratory supervisors who, under the administrative direction of a regional materials engineer, are responsible for providing laboratory testing in the region. In most cases these employees are..performing at the level of a professional scientist or engineer an6 the allocation of positions to this class usually results from a lack of qualified professional staff. QUALIFICATIONS: 1. Grade 12 education. 2. Many years of increasingly responsible laboratory experience as a Technician, Physical Laboratory, or the equivalent. 3. Alertness; keen powers of observation; accuracy; supervisory ability; reliability; good judgment. July, 1965 ' The Union alleges that the grievor is currently misclassified as 'Technician 4 because the core duties of his position do not fit within the Class Standard. Briefly stated, the argument is that the grievor has responsibility for a number of laboratories in a variety of fields. Mr. Wright suggests that the better fit would be at the level of Technician 5, although in fairness, he candidly acknowledged problems with the classification sought. In support, the Union referred the Panel to one authority, OPSEU (D. Levere) and Ministry of Transportation, 1141/86 (Watters). The Employer argues that the degree of supervision is the key to allocation in the Technician Series and that the evidence did not justify the classification sought. Mr. Failes contended that the grievor was properly classified as Technician 4, The Employer cited the following arbitral authorities. OPSEU (O'Neill) and Ministry of Natural Resources, t526/87 (Dissanayake); OPSEU (Aird et al) and Ministry of Consumer and Commercial Relations, 1349/87 (Stone); and OPSEU (Russel J. Foster) and Ministry of Transportation and Communications, 411/82 (Gorsky). No authority was submitted'to us.where a previous panel of the Grievance Settlement Board was called upon to consider the Physical Laboratory Technician Series. The Series has been in effect, apparently unchallenged, for approximately 25 years. - 10- In the instant matter, the preamble is of assistance. It specif'ies that the Class Series is designed to cover technical service positions "in a variety of physical laboratories throughout the service". Incumbents are required to "perform or supervise the performance of a variety of tests and procedures involvin§ the determination of the strength, durability, composition and physical characteristics of a variety of materials". The preamble states that in class allocations above the level of Technician 2, the extent of supervision is usually the governing factor. Supervi'sory responsibility in the sense of line supervision begins at the Technician 3 level. The preamble goes ow to state that "demonstrated supervisory .... abilities play an important part in the allocations to Technician 4 and 5 levels" Further, the preamble states that positions at the Technician 5 level have responsibility for a.major testing program and 'supervise "a. large staff through a number of subordinate supervisors". In the instant grievance, the evidence established th.at Mr. Lee is the Regional Laborator~ Supervisor. Like other regional laboratory supervisors, Mr. Lee~s position has been removed from the bargaining unit and classified at the management level of TM 16. We cannot accept the Union's argument that management has effectively amended the Class Standards by reclassifying laboratory supervisors. In appropriate circumstances, the Technician 5 level is still available for classification purposes for bargaining unit employees. On the evidence adduced, it cannot be said that the grievor's current ' duties and responsibilities place him bt the Technician 5 level. The gr~evor Does not supervise a number of technic'ians through the use of subordinate supervisors. In addition, the grievor is not responsible for developing the technical aspects of the testing programme, nor does he perform complex evaluative or developmental studies. However, the grievor is required to supervise a number of employees who are classified as Technician 3. There is no evidence before us that any of these Technician 3 employees have line supervisory responsibility. The onus is on the grievor to establish that he is improperly classified at the Technician 4 level. As a general rule, Class Standards are generally worded statements designed to cover a broad spectrum of tasks and working environments. The crux of the dispute appears to be the parties' differing interpretation of the Technician class definition. The definition states that employees "are responsible for the operation of a laboratory devoted to investigating and testing in a specific field". In our opinion, these words should be broadly interpreted to mean an assigned area of testing within a laboratory facility. Mr. Kuhnke. performs assigned testing duties in soils, aggregates and concretes within the functional units at least of three sub-laboratories within the Regional Laboratory at Kingston. Essentially, Mr. Kuhnke's duties have not changed since he assumed hi~ current position in 1985 or 1986. ~n6eea,it can be sa~ that at the regional laboratory level, the duties of the position of foreman have not changed significantly since the Class Definition was developed in July 1965. The grievor supervises a number of technicians or 0989/89 OPSEU (Rolland Kuhnke) & Ministry of Transportation Classification Grievance Grievor employed at Kingston Laboratory as Foreman Soils, Aggregates and Concrete. Grievor alleges improper classification as Technician 4, Physical Laboratory and seeks reclassification as Technician 5, Physical Laboratory. On the evidence adduced, the 8oard found that the grievor is currently properly classified under the class standards approach. subordinates in a variety of difficult tests under fully prescribed testing methods where results are readily recognized, as'contemplated in .the current Class Standard. In add'ition, the grievor performs those tests himself. Similarly, the grievor is responsible for the control and maintenance of equipment and the recording of test results, all of which are required by the Class Standard. For these reasons, the Board is satisfied that the job the grievor~ performs fits within the core duties of the Class Standard and accordingly it cannot be said that the grieivor is currently misclassified. [n the result, this grievance is dismissed. DATED at Brantford, Ontario, this 3rd day of july 1990. R. L. VERITY, Q.C. - VICE-CHAIRPERSON (" i .D[ssen~) (Dissent attached) O. MONTROS.E - MEMBER DISSENT BY UNION NOMINEE - MEN'NO VORSTER ~ RE: OPSEU (KUHNKE) AND THE MINISTRY OF THE ATTORNEY GENERAL GSB 989/89 ,, I must respectfully disagree with the conclusion reached by the majority that the.grievor's job functions fit within the core duties of the class ~tandards for Technician 4, Physical Laboratory. In particular, I disagree wi~h the interpretation which the majority gives to the phrase in the class standard that states employees "are responsible for the operation of a laboratory devoted to investigating and testing in a specific field". The majority gives this the broad interpretation to mean "an assigned area of testing within a l~boratory facility". Such a definition fundamentally alters the meaning of the class standards. While class standards may be generally worded statements, this class standard is quite specific. It talks of a "laboratory" and testing in a "specific field". The definition provided by the majority leads to the result that any work that the employer assigns to an employee, regardless of how many fields of testing this covers, would fit within the class standard. This cannot be what was intended by this phrase. 2 The definition provided by'the majority ignores the phrase in the class standard for Technician 3, Physical Laboratory, which provides, for an employee performing testing in a variety of fields. If a "field" is merely an area of testing assigned by the employer, then there is no need to talk about a variety of fields. Finally, the majority ignores the meaning that both parties have given to the words, The evidence makes it clear that both parties recognize the soil laboratorY, the aggregates laboratory, the concrete ~ laboratory, the asphalt mix lab and the extraction lab as separate'laboratories. This is true'in both the Regional Offices and the Central 0ffice~ I respectfully submit that the majority does not simply interpret the class standard but rather amends it. It is, of course, the Board's perogative to interpret class standards but not to amend them. Fairly interpreted, this class standard can. only mean that an incumbent is only to have responsibility for one lab involved in testing in one specific field. As such, the grievor is improperly classified. Respectfully submitted, MENNO VORSTER