HomeMy WebLinkAbout1982-0595.Mulder.83-07-13IN THE MATTER OF AN ARBITRATION
. Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLE-NT BOARD
Between:
Before:
For the Grievor:
For the Employer:
~ Hearing: May 19, 1983
OPSEU (Jim Mulder)
Grievor
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The Crown in Right of Ontario
(Ministry of the Environment)
Employer
R. L. Verity, Q.C. Vice Chairman
R. Russell Member
G. B. Walker Member
S. Laycock Grievance Officer
Ontario Public Service Employees Union
G. S. Feeley
Manager, Personnel Operations
Personnel Services Branch
Ministry of the Environment
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DECISION
In a Grievance dated August 3, 1982, the Grievor Jim
Mulder, alleges that he .is.improperly classified as an Environmental
Technician 3. By way of settlement, he seeks reclassification to
the higher level of Environment Technician 4.
The Grievor is presently employed as a Geohydraulic
Evaluator with the Ministry's Water Resources Assessment Division,
Technical Support Section (Southeastern Region) at .Kingston. Prior
to 1981, the Grievor's position title was Quasi-Approvals Officer
at the same location. His seniority dates back to 1971.
The Position specification of the Grievor's present job
reads as follows (Exhibit 6):
The Position Specification of the Grievor's present job
reads as follows (Exhibit 6):
Position Code
37-0364-60
PART 1 Position Title This position is:
Geohydraulic Evaluator q New
El Revised
Previous Position Title Class Title Class Code Position Code
Quasi-Approvals Office,r Env. Tech 3 61404 37-0364-60
Immediate Supervisor's Title Position Code
Chief, Water Resources Assessment 37-0364-40
Ministry Division
Environment Regional Operations & Laboratories
Branch Location (Address)
133 Dalton Street,
2. Purpose of Position (Why does this position exist? State
Goals Objectives etc.)
To examine all lacustrine and riverine shore development as
it relates to dredging;deepening, filling and the erection
of structures and facilities. To review and comment on the
technical and environmental aspects of such development with
respect to immediate and long-term effects on the shore zone.
3. Summary of Duties and Responsibilities (Indicate percentage of
time spent on each significant function. Indicate scope,
equipment, working conditions unusual features etc.)
1.
0%
a) Within the.jurisdiction and policies of the Ministry to
review and comment on proposals and plans which may
appreciably alter or change the shore regime; its water
quality; and its use. These proposals may relate to
application or project under Ministry mandate or as
circulated through other government age,ncies and directed
to this Ministry for comment and/or quasi-approval. Such
as:
applications for surface rights (use of Crown Land), water
management activities (dam construction and channelization),
water lots (filling, construction of causeways, docks,
erosion protection structures) circulated to the Region by
the Ministry of Natural Resources, Regional Conservation
Authorities, Trent or Rideau Waterway Authority, Ministry
of Agriculture, Ministry of Transportation & Communications
or the private sector;
applications under the Small Craft Harbour Assistance Program
(construction, deepening, or expansion of harbours and
.marinas) circulated to the Region by the Federal Ministry
of the Environment;
private, Provincial and Federal water activities (removal or
placement of fill, structures to a navigable water) circu-
lated to the Region by the Federal Department of Transport;
class assessments, utility projects, subdivision developments
etc., which involve the shore regime and are filed under
various Ministry applications and procedures;
b) To investigate environmental problems and complaints arising
from authorized or unauthorized shore or nearshore activities
c) To review and survey approved construction p'rojects to ensure
compliance with expressed terms and conditions of the Ministr
:
d
e
2. a
20%
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To encourage public awareness and greater understanding
of the natural systems at play within the freshwater
shore corridor and promote judicious human action.
To keep informed of new technical, legal and policy
changes related to the shore resource.
Additional duties assigned to the position relate to the
arrangement and procurement of equipment and services for
the Technical Support Section. This involves the
arrangement of purchase orders (contractual and general);
record keeping; amendments; and general follow-up. The
incumbent is also expected to provide such information to
the Technical Support Manager and Chief in the form of
monthly expenditure reports or upon request for -such
purposes as budget preparation, funding allocation, etc.
As assigned.
4. Skills,and knowledge required to perform the work (state I education, training, experience etc.)
Graduate from a Resources or Engineering Technology course
with considerable knowledge and practical experience with
the geohydraulic laws and processes of erosion, transport,
Andy accretion; and their integrated relationship to the
aquatic and terrestrial shoreform. The position requires
a thorough understanding and perception of:
the dynamics of the shore environment such as meandering
progression, bluff recession, beach systems, wind/wave,
excavation and entrainment, cross-shore and long-shore
movement, etc.;
the ecological and environmental character of the shore
zone; .lts sensitivity, capabilities, and resilency to shore
development;
the "state of the art" and technical fundamentals, method-
ology of shore construction, dredging, etc.;
the economic and cultural pressures related to the sho r
resource (the technical problems require an understand i
of the lake and river shore ar,eas, as well as the diff i
of anticipating the pressures on freshwater shores and
results of their use);
the policies, regulations, practices and guidelines re 1
to filling, deepening and construction in the shore
environment and the requirements and complications of
contaminants and detritus materials associated with such
activities.
e
ng
culty
the
ated
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JUOGEMENT
The incumben t must be able to rationalize the importance of the
project. The discipline of shore assessment is such that the
accumulative effect is often of more significance than the
individ~ual effect. The incumbent must b'e able to weigh the long-
term criteria (water use and its quality, habitat depletion, shore
suitability and maintenance,
"in scale"
etc.) and come up with reasonable
guidelines and controls which meet both the immediate and
long-term concerns of the shore environment. Often these individual
projects have only a "key hole" perspective on degradation making
the position of the Ministry subjective rather than absolute. The
incumbent must be able to judge the degree, need and limitations
for involv.ement by the Ministry.
ACCOUNTABILITY
The incumbent prepares the letter of authorization for the Ministry
outlining the concerns and guidelines for approval.' From time to
time, the incumbent will be required to commit the Ministry to on-si
decisions without the benefit of consultation and/or approval from
the immediate supervisor. The incumbent must therefore have the
competence to accurately assess the env.ironmental, economic and
legal implications of his decisions.
CONTACT
te
dark requires regular contact with environmental officers, related
specialists, and other government agencies in order to properly
address the concerns and appropriate solutions. Duties also necessi-
tate routine contact with the public and proponents of the projects
in order to discuss~the.details of the proposed work; procedures of
compliance and concerns of the.Ministry and the private sector.
5. Signatures bate Date
Immediate Supervisor Da MO Yr Ministry Official Da MO Yr
"M. J. German" 08 9 81 "R. E. Moore" 8
(please type supervisor's name)
9 81,
(please type official's name
M. J. German, Chief Water Res. & title)
Assess.~ R. E. Moore, Director
5. CLASS ALLOCATION
Class Title Class Code Occupational Effective Date
Group.No. Da MO Yr
Environmental Technician 3 61404 TS 07 01 01 82
I have classified this position under authority to me by the Deputy
Yinister and in accordance with the Civil Service Commission Classi-
fication Standards for the following reasons:
A. The work requires examination of shore development activity
and the assessment of the technical and environmental effects
on the shore zone.
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B. Errors in assessment'of the environmental implications could
result in environmental damage or increased costs to the
individual.
C. The incumbent is responsible for completeness and accuracy of
inspections conducted, and frequently exercises independent
judgement in making "on-side" decisions.
Signature 0
Authorized
Evaluator
if Date
"J. M. Charles Da MO Yr
(Pl;;;E)type evaluator's
14 01 82 J. M. Charles, Personnel
Representative
In his previous position of Quasi-Approvals Officer,
the Grievor's Position Specification (Exhibit 14) was similar
to his present job with the exception in the former position
he performed certain clerical tasks for the entire region.. In
the previous position, the Grievor's clerical functions include~d
Stores Officer incumbent in which he maintained an inventory of
the Region's technical equipment, allocated the use of that
equipment, identified deficiencies and arranged all necessary
purchases, maintenance and repairs. In his present position as
a Geohydraulic Evaluator, the Grievor has no regional clerical
responsibilities.
The Gr ievor testified at the Hearing that his Position
Specification (Exhibit 6) accurately reflected his present job.
Apparently the Grievor is the only hydraulic evaluator in Ontar
In that position, the Grievor reviews all proposals directed'to
io.
the attention of the Ministry's southeastern region relat
marine construction. Specifically the proposals in which
Grievor is involved concerns dredging, filling, harbours,
ing to
the
bridges,
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and even pipelines. Proposals directed to the southeastern
. region of the Ministry of the Environment come from a variety
of sources such as the Federal Department of Transport, the
Ontario Ministry of Natural Resources, the Ontario Ministry
of Transportation and Communication, Conservation Authorities
and Municipalities. The proposals involving marine construction
have increased substantially from 24 in 1971 to 91 in 1982.
Init ially, the Grievor's responsibility was to review
and comment upon marine construction proposals which affected
water quality. However, since the proclamation of the Ontario
Environmental Assessment Act in January of 1977, the Grievor's
responsibilities have been expanded to include a consideration
of the impact of any proposal upon the physical environment.
Accordingly,
the broader i
environment".
was required
the Grievor's responsibility is now to consider
ssue of the "physical destruction of the natural
Prior to 1977, the only legislation the Grievor
to work with wasp the Ontario Water Resources Act.
At the present time, the Grievor has the responsibility to consider
the provisions of the Ontario Environmental Assessment Act and
the Ontario Environmental Protection Act.
As pa~rt of his job function, the Grievor must complete
a field inspection; must deal directly with the proponents to
discuss a project; must indicate either orally or in writing the
Ministry's concerns; and subsequently must prepare a letter of
confirmation for signature by the Ministry's approval officer.
: : ,.~. ,,..~ ,..: .~. ;
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The evidence is clear that the Grievor perfo~rms his job to the
complete satisfaction of his superiors and largely without super-
vision or direction. The Chief of the Water Resources Assessment
Division, Murray German, testified that the Grievor is not required
to write reports per se, but is required to prepare commentaries on
all proposals affecting ma,rine construction. In addition, Mr.
German testified that the Griever's "judgement" was very good
and that he was a "very capable technician".
We now turn to consider the issue of t~he appropriate
classification. The preamble of the class standard Environmental
Technician l-4 (Exhibit 3) reads in part as follows:
"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."
The preamble goes on to say:
"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."
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The two relevant class standards are Environmental
Technician 3 and 4. The class standard for Environmental
Technician 3 provides (Exhibit 4):
"CLASS STANDARD:
ENVIRONMENTAL TECHNICIAN 3
This class covers positions involving inspections
and investigations of the full range of activities in
the environmental 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 of the natural environment. Others
in the environmental monitoring function involve res.pon-
sibility for the selection, operation and maintenance of
specialized, complex electronic chemical or mechanical air,
water or wa,stewater monitoring equipment in field locations
resulting in the production of validated data for use in
environmental assessment programmes. In still other posi-
tions, employees in this classification may assist profe-
ssional staff or senior technician~s 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 control and monitoring equipment,
communal water and sewage treatment projects, waste
management sites and systems, and vehicle emissions
to ensure that they comply with established prac-
tices 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 gradu-
ation from a recognized institute of technology
or community college plus several years of related
exoerience.
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2. Judoement:
Work is performed under minimum supervision
with considerable functional independence.
Mature judgement is exercised in decision-
making when unusual or uhpredictable 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 investi-
gations, inspections or other projects, including
the interpretation and analysis of physical and
field data and laboratory results, 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
involv,e the nature and amount of data to be collected,
actions taken, recommendations made, and can usually
be based on precedent or established practice.
Errors may cause inappropriate action and expense
by the Ministry, industry, or private individu'als
4. Contacts:
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 purpose 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 information before public
bodies such as environmental hearings, municipal
councils, ratepayers' associations, or courts of
law. In all contacts the employee is assumed to
officially represent the Ministry and present
Ministry policy."
\
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The class standard for Environmental Technician 4
provides (Exhibit 5):
"CLASS STANDARD:
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 or emission control
installations, or co-ordinating the investigation and
clean up of sp.ills of hazardous materials, investigating
fish kills, or conducting studies of the natural
environment, etc., !I& they exercise advanced respon-
sibilities across a range of several areas in the environmental
and pollution control field; functioning as group leaders
~providing technical direction, co-ordination and training
to other technical. staff, .including instructing in
technical training programmes. The compensable factors
at this level'are typically reflected as follows:
1. Know'ledge:
Work requires the technical expertise, flexibility
and depth of background to deal independently with
a wide variety of unpredictable environmental pro-
blems or with specialized problems where the
individuals' knowledge may be the only guide to
action. Such knowledge is normally acquired
through gr~aduation from a recognized insti:tute 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 orincioles to new oroblems which do not
respond to'precehent or estab lished practice.
..:
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3. Accountability:
These positions are fully accountable for thee
technical accuracy and q'uality of data collected
or produced and for comprehensive technical re-
ports with recommendations as a result of their
decision on necessary information; format and
content of reports; and appropriateness of re-
commendations. Such reports are suitable for
distribution outside the Ministrv after onlv
general review by the supervi
recommendations could result
monetary loss to the Ministry
damage to the Ministry's cred
4. Contacts: '
or". Poor "
n considerable
or others and in
bility and prestige.
Work( involves a wide variety of continuing con-
tacts with governmental and industrial officials
at the operational, technical, professional and
management levels such as Chief Operators or
Superintendents of water and sewage treatment
plants! industrial plant supe.rintendents, technical,
scientific and engineering officials of their own
Ministry, other Provincial Ministries, the, Govern-
ment of Canada and international agencies.
The contacts are for the purpose of exchanging
information, giving advice; publishing interpre-
tative 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 Ministry as an
expert, and to~present Ministry policy."
Previous panels of the Grievance Settlement Board have
considered classification issues involving Environmental Technicians
3 and 4.~ See R. E. Stiles and Ministry of the Environment, 310/80
(Barton); OPSEU (J. L. Charbonneau and I. A. Skomorowski) and
Ministry of the Environment,.435/80 (Gorsky); Messrs. Newdick and
Jansen and Ministry of the invironment, 516/80, 517/80 (Barton);
and OPSEU (Mr. John Sit) and Ministry of the Environment, 226/82
(Samuels).
.,. .’
_
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The class standards in question are somewhat generalized;
however, personnel in the Environmental Technician 4 classifi;ation
function as recognized experts in specialized work or function in
advanced supervisory capacities in several areas in the environmental
and pollution control field
In the instant Gri
Grievor has no supervisory r
evance, the evidence is clear that the
esponsibilities. This Board is of
the opinion that although the Grievor performs specialized work
the evidence falls short that the Grievor is recognized as an
expert. The evidence is clear that the Griever, is a highly
skilled employee who is performing his functions in a most
satisfactory manner. We accept the Grievor's evidence and the
evidence of Murray German that the proclamation of the Ontario
Environmen t
al Assessment Act has given the Grievor additional
responsibi 1 ities which in conjunction with experience garnered
on the job have resulted in a more sophisticated performance on
the part of the Grievor.
However, it is fair to say that increased sophistication
in the job performance by an employee is not of itself sufficient
reason to warrant a higher classification. In the Environmental
Techni'cian 4 class standard, the contact component (one of the four
compensable factors) contemplates a level of contact with senior
management levels. Accepting the evidence of Mr. German, we cannot
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find that the Grievor has the requi red level of contacts
contemplated by the higher classifi cation.
Accordingly, we. find the Grievor is properly
classified at the present time. Therefore this Grievance is
denied.
A.D., 1
DATED at Brantford, Ontario, this 13th day of,Suly,
983.
R. L. Verity, Q.C.
Vice Chairman
"I dissent" (see attached)
R. Russell
Member
G..B. Walker
Member
5: 2410
5: 2430
,;. -,i
DISSENT
OPSEU (Jim Mulderl and Crown/Ontario (Ministry of the Environment)
I regret I am unable to agree with the draft award of the
Chairman in this matter. In fact, in my opinion, this case
cries out for an upgrade for the grievor, more so than most.
I make that somewhat extravagant claim based on the evidence
of both the grievor and the management, plus the various ex-
hibits, particularly Exhibit 5 wherein it sets out to be
an ET4 one functions as-either a HECOGNISED expert or as a
group leader (my emphasis).
It is my view that the totality of the evidence of both
the grievor and the management (which~ I will examine) reveals
/
that Mr. Mulder is, in fact, an expert in his field, but
management has, as yet, not given him the formal recognition
(de jure) but rather he occupies the defacto position of an
expert in his field.
This is born out in a number of ways. He is the ONLY
Hydraulic Evaluator in the province. In fact, Exhibit 13
makes it clear that at times he is the official representative
of the Ministry of the Environment. Surely this alone could
qualify him as a specialist.
He and he alone deals with the proponents and he alone
(because he's the only one who knows the work in his area)
determines what needs to be done. .This he does based on
his experience and his expertise.
It will be noted that the evidence of management through
Mr. German when he was asked, "Have you had occasion to dispute
any of Mulder's reports," his answer was I'no". Also, Mr. German
agreed that the job of the grievor had changed'in that he now
had to take into consideration the Act and operates within it,
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whereas previously he only had to check on the quality of
water.
Also in cross examination, Mr. German referred to Mr.
Mulder's work as follows, "I spent some time with Mr. Mulder., and
he proved he was very capable, and he used good judgement."
He went on to say, "He deals (by himself) with the proponent,
in most cases provides verbal instructions to the proponent."
Again, Mr. German gave examples of how Mr. Mulder acts on his
own on behalf of the Ministry. One such example was in Odessa
where Mr. Mulder verbally (on his own) ordered the contractor
to "get the dam out."
Reference was made by the grievor to the work he does in
relation to pipeline construction which did not exist prior
to 1978. Also, we, as a Board, should take'.note of Exhibit 8,
where if an error is made it could run into millions of dollars.
Exhibit.9 reveals the over-all comprehensiveness of the grievor's
work. Exhibit 10 shows the important long-term effects of
his work in this area. Finally, Exhibit 11 reveals the grievor's
connections in advising the district manager in a field in
which the grievor was the expert, namely, ice conditions.
It was further agreed by both the grievor and the represent-
ative of management that an error by the grievor could be very
costly but that his performance over the years had been free
of such errors.
As stated in the Chairman's draft, the class standards
(Environmental Technician 3 & 4)in question are somewhat
generalized. One could go so far as to says that the distinguish-
ing features~are that an ET4 provides that one must either super-
vise o:ther employees or be RECOGNISED as an expert (my emphasis).
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The grievor could not supervise others as there is none
to supervise. As for him being an expert, I believe the
evidence points thisout most clearly, what is lacking is
management's recognition of same. It is in this area, in
my opinion, the Board could and should, correct this error in
judgement.
I
I believe Professor Gorsky provides us with some useful
comparisons in his decision in the Charbonneau case 435/80..
On page 35 he says, "I would experience some difficulty
in differentiating between language chosen to describe ET3
and ET4 classifications." I believe the Mulder case also
falls in that category of a problem.
Professor Gorsky then refers to another case, Re -
Montague 110/78, pages 5 & 6, which appears to be on point
with our case. It says in part:
"The Board's concern is -.-whether the griever's job has
been improperly classified, when that job is measured
against absolute ~standards. Often, the description
of jobs of employees in the higher classification will
only serve to illustrate the application to particular
cases of what are necessarily generally worded standards."
I submit that is precisely the situation in the Mulder case.
An examination of Exhibit 5 (ET4) under the four numbered
duties shows that the grievor did~, in fact, all the tasks
set out in 1, 2, and,3 and in 4 while he didn't have continuing
contact, he did by and~large meet the requirements set out
under 4.
Where then does he: fail to qualify under the Class
Standard? It is only in the preamble wherein it sets out,
they either function as a RBCOGNISED expert or as a group leader,
that you qualify as an ET4.
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It seems fair and logical that if one meets the four
standards oe KNOWLEDGE - JUDGEMENT - ACCOUNTABILITY - and
CONTACTS, one is an expert in this field and should be so
recognised by management.
I would, therefore, allow this grievance and make the
necessary financial adjustment for an ET4.
/ch