HomeMy WebLinkAbout1980-0308.Haldane et al.81-06-19IN THE MATTER OF AN ARBlTRATION
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CROWN EMPLOYEES COLLECTIVE BARGAINING AC?
Before
THE GRlEVAlUCE SETTLEMENT BOARD
Between: OPSEU (Derek Haldane et al)
and
The Crown in Right af Ontario
~Ministry of the Environment
Before: Mr. P. Draper Vice-Chairman
Mr. C. K. C;ifflr :Xenber
Mr. I. ‘iho.nson ?demwr
For the Griever:
For the Emg!oyer: -
Mr. N. A. Lczay, Grievance Ckssification Zfi::r
Onrxio Pl;blic Service Empiofees iir.icll
,Mr. R. Ketxedy, Personnel Officer
h;inisVy of the Environment
C. 5. Feeley, Manager, Personnel Operations
Ministry of the Environment
Hearing: May 21,1931
The grievors, Peter Wolfe and Derek Haldane, grieve that thei:
positions are improperly classified as Environmental Technician 3 and seek
re-classification as Environmental Technician 4. The class standards for
the two positions are the following:
ENVIRONMENTAL TECHNICIAN 3
This class covers positions involving inspections and investigations
of the full range of activities in the environmentai assessment and
pollution control field. In some positions, they conduct investigations of
pollution of air (stationary and mobile sources), land or water, including
noise, and plan, organize and conduct assessment surveys and monitoring df
the natural environment. Others in the environmental monitoring funcxion
involve responsibility for the selection, operation and maintenance of
specialized, complex electronic , chemical or mechanical air, water or
wastewater monitoring equipment in field locations resulting in the
production of validated data for use in environmental assessment
programmes. In still other positions, employees in this classification may
assist professional staff or senior technicians in the clean up of hazardous
spills, or in conducting applied research projects or surveys to evaluate new
technology and methods, assess the natural environment, effect corrective
action in the case of malfunctioning pollution control equipment, or in the
processing of approvals. The compensable factors at this level are
typically reflected as follows:
1. Knowledge:
Work requires the technical expertise, approaches and
practices to deal effectively with a wide variety .of
environmental matters such as inspection of newly
installed or malfunctioning ,private sewage disposal
systems of all sizes (e.g. serving schools, nursing
homes, etc.), industrial air and water pollution
connol and monitoring equipment, communal water and
sewage treatment projects, waste management sites and
systems, and vehicle emissions to ensure that they
comply with established practices and standards, or to
qualitatively assess the effects of polluting discharges
on the surrounding environment (e.g. determine
wastewater loading guidelines for municipal/industrial
discharges). .Such knowledge is normally acquired
through graduation from a recognized institute of
technology or community college plus several years of
rejated experience.
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?. Judgement:
Work is performed under minimum supervision with
considerable functional independence. ;Mature judgement
is exercised in decision-making when unusual or
unpredictable, situations arise. .Matters deviating from
established practices and precedents are dealt with at
this level and only sensitive or contentious matters are
referred to supervisors. Independent judgement is
exercised in the preparation of comprehensive technical
reports on all investigations, inspections or other
projects, including the interpretation and analysis of
physical and field data and laboratory r~ssults, making
recommendations where necessary.
3. Accountability:
These positions are accountable for the accuracy and
completeness of the data collected and of the
investigations or inspections conducted. Decisions
involve the nature and amount of data to be collected,
actions taken, recommendations made, and can usually be
based m precedent or established practice. Errors may
cause inappropriate action and expense by the Ministry,
indusvy, or private individuals.
4. Cmtacts:
Contacts may be with private individuals, small’business
proprietors or professional, technical and operational
staff of industry, municipalities, their own or other
Ministries and/or the Federal Government,
The propose of the contacts will be to exchange or
collect information and data, give advice, make
recommendations or enforce regulations. On occasion,
it may be necessary to appear as a witness providing
technical evidence and/or informatim before public
bodies such as environmental hearings, municipal
councils, ratepayers’ associations, or courts of law.
In all contacts the employee is assumed m officially
represent the Ministry and present *Ministry policy.
ENVIRONMENTAL TECHNICIAN 4
This class covers positions of employees involved in conducting
and co-ordinating technically complex and specialized work in
environmental assessment and pollution control. They either function as
recognized experts in specialized work such as the inspection/investigation
of complicated malfunctioning municipal or industrial water, wastewater
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emission control installations, or co-ordinating the investigation and clean
up of spills of hazardous materials, investigating fish kills, or conducting
studies of the natural environment, etc., OR they exercise advanced
responsibilites across a range of several areFin the environmental and
pollutim control field, functioning as group leaders providing technical
direction, co-ordination and training to other technical staf:, including
insaucting in technical training programmes. The compensable factors at
this level are typically reflected as follows:
1. Knowledge:
Work requires the technical expertise, flexibility
and depth of background to deaf independently with a
wide variety of unpredictable environmental problems
or with specialized problems where the individuals’
knowledge may be the only guide to action. Such
knowledge is normally acquired through graduation
from a recognized institute of technology or community
college plus many years’of progressively responsible
related experience.
2. Judgement:
Work is performed under general direction. Judgement
is employed to marshal the necessary human, material
and/or information resources and to organize studies,.
surveys, investigations or inspections independently,
referring to supervisors only in the event of very
unusual circumstances, and periodically to advise on
progress. Judgement is exercised in applying general
technical principles to new problems which do not
respond to precedent or established practice. ,
3. Accountability:
These positions are fully accountable for the technical
accuracy and quality of data collected cr produced and
for comprehensive technical reports with recommendations
as a result of their decision on necessary information:
format and content of reports; and appropriateness of
recommendations. Such reports are suitable for
distribution outside the Ministry after only general
review by the supervisor. Poor recommendations could
result in considerable monetary loss to the Ministry
or others and in damage to the ~Minisay’s credibility
and prestige.
4. Contacts:
Work involves a wide variety of continuing contacts
with governmental and industrial officials~ at the
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operational, technical, professional and management
levels such as Chief Operators or Superintendents of
water ard sewage treatment plants, indusaial plant
superintendents, technical, scientific and engineering
officials of their own Ministry, other Provincial
,Ministries, the Government of Canada and international
agendes.
The contacts are for the purpose of exchanging
information, giving advice, publishing interpretative
data, making recommendations, planning co-operative
studies, or enforcing regulations. It may be necessary
occasionally to appear as a witness or technical expert
before public hearings, such as the Environmental Hearing
Board, or a court of law. In all contacts, the employee is
assumed to officially represent the iMinistry as an expert,
and to present ,Ministry policy.
The preamble to the Environmental Technician I - 4 series reads
in part:
PREAMBLE
ENVIRONMENTAL TECHNICIAN 1 - 4
INCLUSIONS:
This series covers positions responsible for investigational,
inspectional, data collection and preliminary evaluative and interpretive
work on matters relating to environmental assessment and pollution
control in the natural environment...
COMPENSABLE FACTORS:
There are four levels in this series and the assignment of positions
to the appropriate levels will be based on the consideration of
four compensable factors: knowledge, contacts, judgement and
accountability.
At the ‘outset of the hearing the representative of the employer
raised two preliminary objections.
The first objection was that the grievances should be heard
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individually, the grievors being employed in separate geographical and
organizational groups. In reply, it was argued that the positions in question
come under one class standard and one position specification. Further, it
was stated that three separate grievances had originally been filed but that
a single second stage meeting had been held under.the grievance procedure
at which they were .discussed collectivedly (one grievance, that of Rooert
Cable, is not being pursued). The Board overruled the objection on the
ground that although two grievers were involved, what was before rhe
Board was, in effect, a single dassification grievance.
The second objection related to the hearing of Mr. Wolfe’s
grievance. When served with notice of the application the employer
expressed “concern at the undue delay and lack of direct communication”
but raised no formal objection to the application. The Board overruled the
objection, being of the opinion that the employer, having accepted notice
of the application without objection (albeit with some dissatisfaction as to
the lapse of time), could not now assert that the application was defective.
At this stage of the hearing, the Board having decided to hear .Mr.
W.olfe, the parties agreed that the Board’s decision on his grievance would
apply to and determine the grievance of 1Mr. Haldane.
The griever, Peter Wolfe, is employed in the Industrial Abatement
Section, Toronto West District, Central Region of the Ministry of the
Environment. In general terms, his work has to do with air, water Andy land
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pollution in the indusnial sector. The, governing statute is the
Environmental Protection Act. The district, one of two in the region, is in
charge of Mr. W. Bartkiw, District Officer. The other district; Toronto
East, is in charge of iMr. Boyd, District Officer. When his grievance was
filed (February, 1980) the grievor’s immediate superior was <Mr. I.
GaIlacher whose title was Senior Environmental Officer and whose
classificaticn was Environmental Technician 4. LMr. CaIIacher has since
been promoted out of the bargaining unit and was succeeded by the present
incumbent, Mr. Sennema, who carries the same title and dassification.
In February, 1980, the position specification describing the
grievor’s duties was slightly more than four years old. At the second stage
of the grievance procedure a draft of a new position specification prepared
by ,Mr. Bartkiw and iLlr. Boyd was presented to the grievor for discussion.
While agreeing generally with the draft, he believed that certain of his
duties had been omitted and others were understated. He therefore
prepared and submitted his own version of his duties.
The grievor testified that between 1975 and 1980 the volume,
complexity and responsibility of his work had steadily increased. During
that period he had carried out assignments that would normally have been
given to professional engineers, or to E.T.4%, or to E.T.3’s acting under
supervision. In the course of such assignments he dealt directly with
various ministry officials including the ,Minister on occasion. The
assignments came mainly from 1Mr. Bartkiw, none from the Senior .
Environmental Officer. Six examples of reports or surveys made by the
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. ,
griever were submitted in evidence. One was a “Section 83 Report” done in
collaboration with a staff professional engineer, which dealt with a
violation of the statute and led to the issuance of a control order requiring
the offender to take remedial measures. The draft order was approved by
the Legal Services Branch of the ministry. Recommendations were later
made to the Deputy Minister regarding requests from the offender for
amendments to the conaol order. A Nnisay press release named the
grievor as the media contact. A second was an investigation of odorous
smoke emissions resufting in a Section 83 Report, a recommendation for the
issuance of a control order and a draft of the terms of the order. The
grievor was the minisuy spokesman at meetings of residents of the
neighbourhood affected chaired by the local member of the provincial
legislature. A third was an investigation of a hazardous material spill in the
course of which ,Mr. Bartkiw and the grievor represented the ministry at
Toronto Board of Health meetings and the grievor was the ministry contact
with the media.
James Gallacher is at present Supervisor, Special Investigation
Unit, Central Reglcn of the Minisay of the Environment. Called as a
witness on behalf of the griever, he testified that for some three years
prior to February, 1980, he was employed in the same office as was the
grievor. HIS principal duty was to coordinate the work of the E.T.4’s and
E.T.35 on the staff. He confirmed that the work of the Toronto West
District had grown progessively heavier during hiss tenure there and for that
reason and because one of the E.T.4’s had left and was not replaced the
grievor was sometimes called upon to perform duties beyond the normal
scope of his classification. There is some unavoidable overlap between the
duties of E.T.3’s and E.T.4’s in addition to which “in emergencies everyone
works above classification”. In his opinion ~“when you get into Section 83
reports .and control orders ” the responsibilities are clearly those of an
E.T.4.
Mr. Bartkiw testified that E.T.3’s do the type of work described in
the draft position specification drawn up by him and .Mr. Boyd. E.T.4’s
must be specialists with a particular technical expertise. .Mr. Wolfe is a
generalist, not a specialist. Although he acknowledges that it is difficult
to distinguish between the work of E.T.4’s and E.T.3’s, he is certain that he
has not required the grieyor to do E.T.4 work.
In his testimony the grievor referred to the 1975 position
specification, the later draft and his own version, alJ of which were before
the Board, as together describing his duties as they existed in February,
1980. We see no material difference amongst the three descriptions and if
they accurately describe the grievor’s duties, other considerations aside,
his position could be said to have been properly classified as df February,
1980. However, it is argued on behalf of the grievor that he was, in fact,
doing the work set out in the class standard for E.T.4’s. That is to say, the
class standard for E.TA’s more properly describes the grievor’s work at the
relevant tinie than does the class standard for E.T.3’s. Having carefully
compared the two class standards and measured the grievor’s work against
each of them, we are not persuaded to that view.
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!Ve have no doubt that the griever was, on a number of occasions
during the period in question, selected from among the group of E.T.3’s for
especially demanding and sensitive assignments which involved duties and
responsibilities beyord those covered by the class standard for his position.
The three assignments referred to earlier are examples. Nevertheless, we
have concluded, on the evidence before us, that the griever did not in the
course of his work over a period of time prior to February, 1980, regular!y
perform. duties substantially similar to those contained in the E.T.4 class
standard.
The grievance is dismissed.
Our decision apart, there are several aspects of this case that we
believe warrant comment.
)Ve were dismayed by Mr. Bartkiw’s insistence that for an
employee to become an E.T.4 there must either be an appointment
available as a Senior Environmental Officer (e.g. ,Mr. Gallacher) or there
must exist a requirement for a technical specialist to work full time in a
particular field such as oil refining. We find nothing to support that view
either in the E.T.4 class standard or in the scheme of progression implied in
the sequential class standards for E.T.1 through E.T.4.
The case appears to us to illustrate those instances - not unique
to the ,Ministry involved - where administration of the classification
system by the employer consists largely of reacting to grievances rather
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than acting positively to monitor the operation of the system on a
continuing basis. It would be a refreshing departure if rhe employer here
were to initiate an inquiry as to whether or not Mr. Wolfe’s position is now,
a year and more after his grievance was filed, properly classified.
Finally, ‘we feel strongly that more communication and
cooperation between the parties, if it had not iec to settlement of the
grievance, would at least have resulted in better preparation and
presentation of the respective posiiions of the parties.
DATED at Toronto this 19th day of June, 1981.
“I concur”
C. K. Griffin - Member
"I concur"
I. Thomson - Member
IT