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HomeMy WebLinkAbout1984-1263.Mullin.85-10-07IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Griever: M. I. Rotman Course1 Rotman, Zagdanski Barristers & Solicitors For the Employer: R. Scouller Personnel Administrator Personnel Branch Ministry of Agriculture & Food OPSEU (R. Mullin) and Grievor The Crown in Right of Ontario (Ministry of Agriculture & Food) Employer R. 3. Deliile W. Walsh K. W. Preston Vice-Chairman Member Member May 15, 1985 June 25, 1985 DECISION classified as an Agricultural Technician deserves to be reclassified to the level 3. The grievor bases his claim first on job when measured against the relevant c 1 the higher classification which he seeks evor is This is a classification grievance. The gr i 2 and claims that he of Agricultural Technician the.allegation that his ass standard comes within and second on the allegation that there are other employees performing the same dut are in the higher classification. The jurisdiction of es as he, who this Board to consider both bases is clearly recognized: O.P.S.E.U. v The Queen in Right of Ontario et al., (,1982) 40 O/R. (2d) 142 (Ont. D Ct.). When determining whether the griever's job fits within the iv. higher classification'sought we must recognize that there is a series of classifications and ,the language of the grievor's existing class standa,rd is relevant therefore to that determination. Class standards are necessarily general in their phrasing and duties:within classes may necessarily overlap and in determining their meaning it is obviously helpful to read them in their context within the series. The Agricultural Technician Class Series (Exhibit 2) covers positions of employees who apply or supervise laboratory techniques at an agricultural experimental station under the guidance'of i cultural academic or professional staff: The Class Definitions for Agr Technician 2.and Agricultural Technician 3 are as follows: Agricultural Technician 2 Class Definition: This class covers positions of fully qualified employees performing a variety of routine . . tecnnicai auties related to agricultural research programs. In some positions, they are expected'to carry out standard technical procedures under the general supervision of professional or senior technical staff. In other positions, they require specific instruction and close direction when engaged in more complex or unusual assignments. - 2 - They perform typical functions associated with research or treatment projects such as:- Prepare plots for planting by the controlled use of fertilizer, analyze soil and plant tissue samples; apply disease prevention chemicals, harvest, measure and record growth rate and crop yield. Apply insecticides and carry out a pest control programme in greenhouses, maintain experimental chemicals and equipment and demonstrate and instruct safety precautions. Measure and germinate seeds, select superior plants for breeding.' Utilize various scales and calculations to complete analysis of variance and prepare written summaries. Prepare animals for surgery, sterilize and maintain necessary instruments. Administer controlled diet and medications to a variety of experimental animals,and poultry; record growth, breeding and physical condition; collect excreta samples for laboratory analysis and maintain the necessary records. These employees may be direction to or assist staff assigned to thei r In some positions they assist with demonstrat required to give technical in the training of more junior particular 'area of research. may provide material for and ions of research programs. Agricultural Technician 3 Class Definition: This class covers positions of sen technicians w:ho are assigned to a particular field of i or car ~..' agriculture. Under the general supervision of academi professional staff, these employees co-.ordinate all routine technical activities related to a particular project in agricultural research. They organize the necessary,supplies and equipment and direct the work of subordinates to produce accurate results for the stated objectives.~ These employees formulate, develop, implement, assess and revise procedures designed to produce accurate and reliable results. They utilize their extensi.ve technical competence in determining propogation procedures; conducting germination experiments; selecting suitable breeding material; processing and evaluating qualitative and quantitative characteristics; performing major nursery techniques in grafting, budding and hybridization; decidi.ng the cultural practices of field.or greenhouse cultivation. They supervise all activities in the maintenance of animals or poultry in the field of research. They are responsible for diet control; analysis of nutrient level; calculation of levels of protein, fat, fibre and other constituents in food preparation recording of-pertinent records of growth, health and medication; overseeing the collec.tion of samples for laboratory analysis, and selecting and ,breeding appropriate subjects for test experiments:' T 3.- They organize schedules of work; ~demonstrate procedures and allocate duties to subordinate~staff who may be periodically assigned to the project for which they are r~esponsible. They may.be required to assist with any of the functions performed by their.subordinates. These employees conduct simple biological research experiments, complete analysis of variance of species, and prepare statistical data in the form of finalized reports. They may be required to assist in lecture programs, preparing laboratory specimens and demonstrating for students. They' may, in the absence of the director of the project, advise visitors on methods, productivity and other associated factors. In some positions, they may address private or official bodies on technical and horticultural subjects or assist in the writing of scientific papers. It is common ground that the grievor has the necessary qualifications for both positions. The dispute concerns whether the job which the grievor is required to perform fits the higher standard or, in the alternative is substantially similar to the job performed by others who have the higher classification. The latter justification is founded in the thought that the actual classification practices of the Ministry may differ from the documented standard. Re McCourt, 198178. In comparing the'grievor's duties with others we accept the idea expressed in Re Aikins, 603/81, that: "Whatever the term used by the Board in earlier, classification cases, "substantially parallel", "substantially similar", "virtually identical", or "virtually the same", what is to be determined is whether or not the work being performed,by a grievor is the same in its distinctive and essential elements as that being performed by employees in the classification sought." The grievorhas worked at the New Liskeard Agricultural College for.eight years. He grieved on June 4. 1982 that he was improperly classified (Exhibit 3). By letter dated August 31, 1982 this grievance was withdrawn (Exhibit 4). In response to the instant grievance the settlement of the first grievance was not mentioned at the first and second stage but at the opening of our hearing the Mfnistry took the position that the grievor was estopped from I '- 4 - proceeding by his withdrawal of the first grievance. The grievor testified that his earlier grievance was based partly on the fact that another employee at his College was doing the same job and had the higher classification. The grievor testified that he withdrew his grievance when the Ministry made a payment to him reflecting the higher salary which be believed he had missed. The circumstances. do not bespeak estoppel and the preliminary objection is not accepted. The grievor, following his Grade XIII matriculation, graduated from the University of Guelph's two year course for Farm Operators and Managers. He has also completed two~years of a Bachelor of Science program in.Agricultural Science at that same university. The grievor is in the Animal Science Department at the College and his immediate supervisor is Earl Pollock, Head of that department. Within that department there are two lecture~rs, one'whose interest is dairy cattle and the other sheep. Each lecturer s,upervises an Agricultural Technician 2. The griever's principalactivity is with respect to beef cattle although he also looks afterthe swine herd unit. The grievor described his duties in the c.ow-calf operation at the College. The herd is maintained for research purposes: research is conducted in the areas of diet, drugs and med,ic.ation, artificial insemination and breeding. The College is called on to evaluate the worth of various commercial food stuffs, vitamin supplements and the like, along with products grown in the area. To evaluate the various products and Procedures research trials are set up. The grievor is expected to make observations dur,ing the trials and keep records of the same; e.g. weight gains, feed,consumed, weather conditions, some ca lculations w i drugs consumed. He is also expected to perform th respect to the data he assembles, e.g. ratios - 5 - of weight gained to food consumed (see Exhibit 10). In addition to his assistance in research the grievor also participates in the teaching of students at the College, in lectures and in laboratory demonstrations. He testified that he would do at least three stand-up lectures in a year, each of approximately one- half hour. He.testified that he received little in the way of instruction with respect to laboratory demonstrations. He would be advised to "prepare a lab on preparing for feed lot" and then it would be up to him to prepare sufficient material for a two-hour lab. The grievor would demonstrate to the students such things as dehorning, tatooing, worming and implants. In addition the gr i the students~for instruction in barn routines d have a student assigned to him for superv was available to occasionally,wou in the summer. The gr evor and on isi evor testified that he was in charge of the swine herd unit. As such he looked after the general health of the herd, kept records of feed consumption, drugs, vaccination, weight gains, breeding, litter sizes. He demonstrated to the students manipulations, tatooing, castrating, and the technique for removing needle teeth. In January of 1984 he took on the Record'of Performance Program for swin'e. This was a developmental assignment to assist area farmers in the breeding and raising of better stock.. There were potentially 30-50 farmers in the district who might enrol in the program but in fact few did enrol. (Exhibit 1 supervise The grievor does not agree with his position specification 1). The position specification states that he does not others whereas he states that he does regularly supervise agricultural workers.and also supervi The position'specification speaks of ses students in the summer. the.incumbent "assisting" in i 6 _ live stock manipulations, in compilation of research trial results and in laboratory de~monstration., The grievor complains that he does not "assist", he does these things. In the reasons for the classification the position specification states that the incumbent carries out hi.s task "under the general supervision of the. Senior Technician"; since 1982 there hasn't been a Senior Technician in the department and yet "the jobs are. still being done". The Record of. Performance program came in in 1982 and is not reflected in the position specification. The grievor went through the Class Definition for Agricultural Technician 3 and professes that most of the definition fitted his job. He noted that he, of course, did not participate in the agronomy aspects of'the second paragraph. Her noted also that he did not "complete analysis of variance of species" and stated that such was only done in the agronomy areas at'.New Liskeard,; He did not assist in the writ ,i papers were papers. He, and while Earl Pollock might review the selection him. The grievor testified that Earl Pollock wou proposals to implement but that there'd be discus the same beforehand. The grievor recognized that ng of scientific papers~but maintained that in fact few done; he did note that he would provide the data for such testified that he would select suitable breeding material he wouldn't overrule Id give him research sions concerning as head of the department Earl Pollock had the f~inal say but there was 'always discussion between them first. Nancy Woeldicke described her duties and responsibilities. Ms. Woeldicke has been classified at the Agricultural Technician 3 level since 1977. She works at the Kemptville College of Agriculture and Technology. She is involved with beef cattle, their nutrition and management. Ms. Woeldicke was called as a witness by the grievor ostensibly to support his -7- claim that he was performing the same work "in its distinctive and essential elements" as a person who had the higher classification. In fact her description of her task indicates the opposite. Ms. Woeldicke is a project leader at the barn level. She arranges the work scheduling for the labourers in her area, formulates the rations for the feed to cattle, and directs the agricultural workers. She described herself as responsible for the health of some 200 head of cattle. ~Treatment was provided in accordance with a proposal. She described the joint development of the general treatment procedure to ~follow, the joint decision on a research program. She described how her supervisor decides generally what he wants to accomplish that year and how "we discuss how best we can aCCOmDliSh that". She noted that "I decide what records are necessary to keep",. "I'm responsible for ordering supplies", "I contact drug companies", "1 have direct contact with the suppliers", "I arrange for all the maintenance and repair'!. With respect to records, she not only keeps the daily records or supervises the same, she "summarizes them for the reports", she "uses a computer to do the statistical analysis that is necessary", she "prints out.the graphs and tables to be used in the- final reports"; She noted that while the supervisor wrote the final report "I go over the report with him offering criticisms and suggestions". On special procedure days for castrating, dehorning and implants she would assign duties to the agricultural workers and also work along with them. Two agricultural-workers report to her regularly and on some occasions she'll supervi.se four or five. marked di responsib f ferences from the grievor's. Ms. Woeldicke has i lity for the supervision of other agricultural workers to Ms. Woeldicke's description of her duties illustrates , an exten - 8 - t and of a kind quite differen from the grievor. In addition her contribution to the formulation of a research project and to the gathering and presentation of the data thereby obtained.is at a level markedly above that of the grievor's. The grievor is clearly not successful in his claim advanced on the basis that he is required to perform like othe,rs who have the higher classification. Earl Pollock, Head of the Animal Science Department since 1980, and the griever's supervisor described their working relationship. He noted that he and the principal of the college would decide on priorities and research projects and the grievor would be given written instructions of procedures to be carried out. Examples of those detailed instructions were provided: Exhibits 8, 9, 13, 14 and 15. When he was away f~rom the college fbr a week written instructions were given to the' grievor of tasks to be performed,'Exhibit'21. He noted that he would have contact with the grievor three to four times a week, discuss ,h.i~.s observations, and based on that he, the supervisor, would decide what changes were to be made. Mr. Pollock went through the class standards for Agricultural Technician 3. He testified that the grievor does not "formulate, develop" procedures but rather only "implements" procedures; he, the supervisor "formulates, develops". According to him the grievor does not "assess and revise procedures"; he, the supervisor does that. He testified th.at the grievor was not "responsible for diet control"; the supervisor ensures the necessary diet to sustain level of nutrition and the grievor has no responsibility for establishing, diet. The supervisor supplies the necessary formula, Exhibit 16, and the grievor decides quantity according to the animal's weight. He noted that "ana.lysis of nutrient level" is simply not done at their college. i - 9 - Regarding "calculation of levels of protein, fat, fibre and other constituents", the grievor has no responsibility and the supervisor does' all the calculations. With respect to "recording of pertinent,~ records" he noted that the grievor records weights and health problems on a routine basis and that activity is covered by the phrase in the class standard for Agricultural Technician 2, "record growth, breeding and physical condition". The class standard for Agricultural Technician 3 g,oes on to say "overseeing the collection of samples for laboratory analysis"; according to Mr. Pollock the grievor doesn't oversee but rather "he takers the samples". With respect to "selecting and breeding appropriate subjects fo:r test experiments", Pollock testified that the grievor had no responsibility for the final decision:. "I'l,l ask him for his observations but 1'11 decide". The standard states "they organize schedules of work"; Pollock says the grievor has no responsibility for scheduling,' Pollock will discuss with the grievor the work to be done but he, Pollock, will decide with,the grievor how best to carry it out. The standard states "those employees conduct simple biological research experiments"; Pollock says the, grievor does not conduct experiments he implements the supervisor's. The standard states "complete analysis of variance of species"; Pollock says the grievor has no responsibility here and only provides the raw data which he, the supervisor, analyzes. Again "employees prepare statistical data in the form of finalized reports".; according to Pollock the grievor doesn't do this but only submits raw data. Pollock gave as an example, Exhibit 10. The grievor made certain observations over a period time, submitted the same to Pollock who did the statistical analysis. The class standard states that the Agricultura 1 - 10 - Technician 3 may “advise visitors on methods”; Pollock says the grievor may act as a guide on tours of the facilities but does not advise on methods. In reply the grievor insisted he does supervise agricultural workers since sometimes they are not fully trained. He insists he ~does statistical analysis in that he works out ratios, e.g. weight gain to feed. He notes that often when Pollock is away he has to act on his own. It is obvious to all that the grievor is h and highly motivated. initiative and an abil taken on work not requ his job is inaccurate: ighly qualified From the evidence he has cons istently displayed ty to work with minimal supervision. He has red of him. The position specification for it does. not refer to his work with.the Record of Performance program with swine and it repeatedly refers to him “assisting” in matters when it is clear that in fact he doesn't merely assist cannot classi f involv e, at the but rather does them. All of these things are true but I say that I am persuaded that his job is entitled to the higher ication. In the matters generally of supervision and ment in the design of procedures he is not required to act level described in the higher class. Accordingly the grievor has failed to satisfy either that he is doing the same work as one with the higher classification or that his job fits within the higher class standard and the grievance is therefore dismissed. - 11 - Dated this 7th day of October, 1985. . “I do not concur" W. Walsh, Member