HomeMy WebLinkAbout1985-0124.Ting.87-03-27IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN:
OPSEU (Ores Ting)
- And -
The Crown in Right of Ontario
(Ministry a!, the Environment)
BEFORE: R. L. Verity, Q.C. Vice-Chairman
S. J. Dunkley Member
I. J. Cowan Member
For the Grievor: R. Wells
ClXJlEel
Gowling & Henderson
Barristers & Solicitors
For the Employer: R. Younger
Staff Relations Advisor
Staff Relations/Safety
Ministry of the Environment
Hearings: February 20, 1986
May 26, 1986
May 27, 1986
Grievor
Employer
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DECISION
In November, 1963, the Ministry initiated a major
reorganization in the Laboratory Services Branch at Rexdale,
Ontario by the creation of a new section - The Drinking Water
Organic Section.
The issue in this matter is whether within the context of
that reorganization, the Employer improperly posted the position of
Senior Chromatography Technician in the Organic water Unit.
On March 11, 1985, Mrs. Ores Ting filed two sepa,rate
grievances which arose from the posting. One grievance (G.S.B.
#125/85) alleged that she had been unfairly denied a promotion toes
the position of Technician 4 as advertised in Competition #EN-6/T.
At the Hearing that grievance was withdrawn by the Union.
The remaining grievance (G.S.B. #124/85) alleged that the
posting was held in contravention of Articles 4 and 5 of the
Collective Agreement, and improperly required the Grievor to
compete for her own job.
Patrick Crazier, one of two successful applicants for the
competition attended throughout the proceedings. He was accorded
full third party status on the understanding that he was the only
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employee who could be, adversely affected by the result. In
addition, Mr. Crozier was called as a witness by the Employer
The material facts are not in dispute. Mrs. Ting became
a permanent Ministry employee in 1979, although she had served as a
contract employee since 1976. From 1979 to 1983, Mrs. Ting worked
as a Chemical Laboratory Technician 3 in the Pesticide Section of
she the Ministry's Laboratory Services Branch. In that capacity,
performed a range of high pressure liquid chromatographic and
chromatographic services for the analysis of herbicides, pest
and other polar organics in environmental samples.
icides
In November, 1983, the Grievor was advised that she would
be assigned to the newly created section, namely the Drinking Water
Organic Section. The section was further subdivided into an
Organic Water Unit, a Priority Pollutants Unit, and a Dioxin Unit.
Personnel for the new section was conscripted from various Ministry
Sections including pesticide; water quality, ,waste water treatment,
inorganic trace contaminents and 'organic trace contaminents.
Mrs. Helle Tosine was appointed Manager of the section,
and Dr. David Hall was appointed Supervisor of the Organic Water 1
Unit. In January, 1984, the Grievor was assigned to duties in the
Organic Water Un
transitional per
During that time
i
i
t. January, February and March, 1984 was a
od for the purpose of organization of the‘unit.
the Grievor assisted Dr. Hall in acquiring the
i . -4 -
laboratory glassware, equipment, chemicals and other miscellaneous
items required.
By April 1984 the Organic Water Unit was operational.
Dr. Hall established a comprehensive timetable for the years 1984 -
1985 for the introduction of various sophisticated analysis
methods.
In May 1984, Mrs. Tosine prepared a written document
(Exhibit 12) which outlined the basic responsibilities and briefs
job descriptions for designated employees in both the Organic Water
'Unit and the Priority Pollutants Unit. The duties for employees in
the Organ ic Water Unit were described as follows:
" b )
c)
Ores Ting: - performs instrumental .ana,lysis
of prepared extracts by
capillary GC by setting up,,
calibrating and operating
capillary GC/data systems;
- performing QA/QC procedures by
maintaining calibration curves
and response tables;
- interprets chromatograms and
tabulates data for supervisor;
- maintains updated file of
expenses for OWU by entering
into Apple III program for
output by D. Hall;
- document methodology used in
detail for review by D. Hall;
Kim Ngo, Tony Duarte, Roseanne Mallette,
(student)
Prepare samples for 0. Ting by:
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- ensuring clean glassware is
available
- preparing reagents, sol.utions
and packings for extraction
- extracting samples
- concentrating extract and
applying column clean-up
- ensuring work area is
maintained in a clean and
orderly,condition
- LIS as required by supervisor"
A copy of Exhibit 12 was given to the Grievor and to the
other employees listed.
To implement the Ministry's Goals and Objectives for the
new section, Mrs. Tosine prepared Sob Specification and Class
Allocation Forms for all positions in each Unit. Subsequently on
January 7,‘1985, Mrs. Tosine prepared the. Position Specification
and Class' Allocation Form for Senior Technician in the O~rganic '
Water Unit. That Position Specification and Class Allocation Form
reads as follows:
"Purp0s.e of Position
To technically lead the work of technicians
within the. Organic Water Unit & to carry out
complex analyses. To evaluate & improve
techniques and/or equipment.
Summary of Duties and Responsibilities
1. Performs technical duties with the
Organic Water Unit by:
- having a full working knowledge of all
equipment in the unit and ensuring
proper operating techniques are applied;
- providing guidance to subordinates to
ensure that correct routine analytical
and record keeping procedures are
followed;
50%
-6 -
- providing guidance to subordinates to
ensure that correct quality control
proce.dures are followed;
- daily auditing quality control data
generated by subordinates and initiating
corrective action if required;~
- reviewing results generated in the
unit to determine accuracy of testing;
requesting confirmation of results in
cases of obvious discrepancies;
- auditing results on final reports
produced by the Organic Water Unit
generating repeats as required,
approving submissions;
- evaluating mathematical results and
advising supervisor of observations and
conclusions prior to informing
originator;
- ensuring that non-routine calibration
of instrumentation is personally
conducted;
- ensuring application of safety
procedures and stopping action when
unsafe procedures are followed;
referring to attention of supervisor
with suggestions for corrective action;
- referring to supervisor in cases where
pr.oblems a're unsolvable;
- advising supervisor if existing
methods are inadequate to meet needs of,
unit and carrying out evaluation as
directed by supervisor.
2. Performs instrumental analysis of@
prepared extracts by computerized
40% capillary gas chromatography or gas
chromatrographylmass spectrometry to
evaluate & improve existing methods &
techniques by:
- setting up, calibrating and operating
gas chromatographic data system
equipment using a variety of detectors
(ECD, FID, NPO);
- evaluating GC/DS or GS/MS/DS
conditions for the specific function of
optimal separation and quantitation of
herbicides & pesticides in aqueous
samples:
-recommending changes in GC/OS or
GC/MS/DS procedures to Supervisor for
optimal analysis of any new pollutants.
-setting up apparatus and equipment,
i . -7 -
assigning the routine developmental
testing to subordinates; checking
operation of equipment periodically to
ensure proper functioning; making
adjustments as required;
- interpreting complex chromatograms,
verifing data and performing other
quality control checks by making
calibration curves calculating results,
insuring the maintenance of records of
analyses, test & other experiments
through a Daily Work Record and by
ensuring these results are entered into
a computer data base; and writing
reports on quality assur'ance methodology
changes or improvements for the
supervisor's review;
3. Carries out administrative duties
10% associated with the Organic Water Unit
by performing such tasks as:
- ensuring adequate training of all Unit
staff;
- recommending to Supervisor staff moves
to suit individual capabilities;
- maintaining complete and up-to-date
written procedur~es for each test at each
workstation in the unit, and a file copy
for section reference;
_- maintaining records of retired
procedures for reference;
- preparing and collating quality
control information, maintaining quality
control summary records for each test in
the unit;
- preparing and collating productivity
information;
- preparing requisitions for laboratory
equipment up to Sl.OO.00;
- preparing reports on utilization of
chemicals, stock-keeping, and chemical
waste disposal;
- as assigned.
Skills and-Knowledge Required to Perform the
Work
Many years experience working in a chemical
residue lab including specifically sample
handling & manipulative skills needed to
work with microlitre quantities of sample;
-a -
thorough knowledge of. analytical chemistry &
instrumental techniques (CC/OS and HPLC) or
acceptable combination of education &
experience ; experience in group leadership
of technical staff; good verbal & writing
skills; ability to interpret & report data
from complex gas chromatograms.
I Have Classified This Position in
Accordance with the.Civil Service Commission
Classification Standards for the Following
Reasons:
Provides group leadership to assigned
technicians in the analyses of herbicides,
pesticides, P.C.B.'s and other organic
pollutants by column chromatography, gas
chromatography or high performance liquid
chromatography.
Performs the more complex analyses in the
lab.oratory by interpreting complex
chromatograms and the analysis of prepared
extracts by capillary gas chromatography or
GS/MS.
Compiles reports and keeps detailed records
of test results and makes recommendations to
supervisor re: changes in GC/DS or GC/MS/DS
procedures for optional analysis of any new
,ication form, the Ministry
, 1985, the following posting
pollutants;"
Following that job specif
posted the position. On 3anuary 25
appeared :
“Senior Chromatography Technicians (2)
(Technician 4)
Chemical Laboratory
Schedule 3
Salary $470.12 - $532.52/wk. (under review)
Restricted to Ministry of the Environment
Laboratory Services Branch Employees
Required by the Organic Water Unit &
Priority Pollutants Unit in the Drinking
Water Organics Section. To analyse priority
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pollutants such as volatiles, PCBs,
pesticides and EPA designated basic,
.neutral, acidic extractables in drinking,
surface and ground waters by instructing
technicians on appropriate sample
extraction, concentration, clean-up and
fractionation by methods .such as column
chromatography. In.terpreting complex
chromatograms, verifying data and performing
other quality control checks by setting up,
calibrating and operating gas
chromatographic data system equipment using
a variety of detectors (ECD, FID, NPD);
evaluating GC/DS conditions for the specific
function of optimal separation and
quantitation of volatile organics, basic,
neutral and acidic organics and organics
such as PCB, herbicides, pesticides in
aqueous samples. Carrying out method
development under the direction of the
Supervisor for analytical methods for the
characterization of a new range of
pollutants in drinking water.
LOCATION: 125 Resources Road, Rexdale
QUALIFICATIONS: Many years experience
working in a chemi.cal residue lab including
specifically sample handling and
mani.pulative skills needed to wor~k with
microlitre quantities of ~samples; thorough
knowledge of analytical chemistry and
instrumental techniques (GC/DS and HPLC) or
acceptable combination of education and
experience; experience in group leadership
of technical staff; good verbal and writing
skills; ability to interpret and report data
from complex gas chromatograms. Less
qualified applicants may be considered at a
lower starting salary.
PLEASE RETURN APPLICATION TO:
Competition File No. .EN-6/T
Ministry of.the Environment
Human Resources & Personnel
Development Rranch
40 St. Clair Ave. W., 6th Flr.
Toronto, Ontario
M4V 1M2
CLOSING DATE: January 25, 1986"
,. i - 10 -
The Grievor applied for the position, but was
unsuccessful. The two successful applicants were Patrick Crozier
and Brian Kruschell. At the time of the competition, Mrs. Ting,
Patrick Crazier and Brian Kruschell were all classified as Chemical
Laboratory Technicians 3. Mr. Crozier became Senior Technician in
the Organic Water Unit.
tha
On February 26, 1985, Mrs. Ting received correspondence
,t she was not successful in the compet i tion and on March 1,
1985, she received a memorandum that she would be
effecti've April 1 to Patrick Crazier’s former.pos
Organic Section.
ition in the Trace
transferred
The Union called two witnesses. The Grievor testified
.
that the job she h,ad perf'ormed between April, 1984 and Sanuary, I
1985 was the job that was advertised in the posting. Brian
Kruschell, one of the successful applicants in the competition,
testified in support of the Grievor’s contention. He did
acknowledge that the complexity of the sample taking procedures
increased subsequent to the competition, and that unlike the
Organic Water Unit, the Priority Pollutants Unit had not been the
subject of major change.
The Employer called three witnesses. Mrs. Helle Tosine,
Manager of the Drinking Water Organic Unit, gave evidence regarding
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the general organization of the Section and her responsibilities in
preparing Position Specifications and classifying each position as
the needs of the Section crystalized with the passage of time. She
acknowledged that in April 1984, a preliminary classification
review by Ministry personnel
Chromatography T.echnician in
that the incumbent be classi
concluded
the Organ i
fied as a T
that the Sen
c Water Unit
echnician 4.
ior
would require
In
cross-examination, Mr. Tosine acknowledged that the Grievor and
Rrian Kruschell were the only incumbents in the Section that were
required to compete for new positions.
Dr. David Hall,
Supervisor of the Organic Water Unit and
the Grievor’s immediate Supervisor, was the key witness for the
Employer. The Grievor had worked under the supervision of Dr, Hall
for some 8 months prior to the competition in January, 1985. .TThe
thrust of Dr. Hall's evidence was that the Senior Technician in the
Organic Water Unit required an incumbent at a level above the
Grievor’s responsibilities. He testified that he encouraged the
Grievor to exercise technical supervision, but that for the most
part she had failed ~to assume those responsibilities.
testified that the Grievor had acquired proficiency in
four test groups (organ0 chlorines). In his opinion,
Further, he
.one of the
the Grievor
had not acquired proficiency in "approval of submissions" or
"sample tracking", and as a result he had to assume that
responsibility. In sum, Dr. Hall testified that the Grievor,
although encouraged to do so, did not perform at the level of a
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Technician 4, either because she was unable orunwilling to do so.
In Dr. Hall's opinion, the Grievor was performing her job "quite
adequately" at the Technician 3 level.
Patrick Crozier
posit ion of Senior Chroma
Unit and was reclassified
testified that he was awarded the
ography Technician in the Water Organic
as a Technician 4.
The Union argued that the Grievor was functioning as the
Senior Technician in the Unit prior to the competition,. and that in
the circumstances there was no vacancy or no new position created
which would have justified a posting under Article 4. Mr. Wells
argued that there was a reclassification of the Grievor's duties
and responsibilities which did not require a posting.
The Employer contended that the Grievor was placed in a
temporary assignment when the new section was'established. Mr.
Younger argued that a new position was created which required a
posting following receipt of the Position Specification and Class
Allocation Form in question.
The Board does not accept the,Employer's argument that
the Grievor was assigned to duties on a temporary basis in the
Water Organic Unit. There is simply no evidence that Mrs. Ting was
appointed to a temporary assignment.
.?. i - 13 -
The Grievor was given certain responsibilities in the
Organic Water Unit which were reduced to writing in general terms
in April of 1984 following the three months organizational period.
Those initial duties were set 0 u t in Exhibit 12. The Board is
satisfied that the need 'for the Grievor’s position changed during
the ensuing 8 months and accord i ngly it was not until January of
1985 that the duties of the pos
i tion finally crystalized in a
Position Specification and Class Allocation Form.
The Board is satisfied that the Position Specification
prepared in January of 1985 was a new position which differed in
material respects from-the duties previously performed by the
Grievor. Those differences involved substantial supervisory
responsibilities and some administrative responsibilities. We
cannot agree that the Grievor's duties as set out in Exhibit 12 are
identical to the duties described in Exh'ibit 4. While the duties
may be described as similar, the differences are substantial.
Accordingly, we find that the Employer was obliged to
conduct a competition by posting the position of Senior Technician
pursuant to the provisions of Article 4. We are unable to find
that there has been any violation by the Employer of the provLsions
of either Article 4 or 5.
Undoubtedly, this grievance arises from the fact that the
Grievor was one of only two employees in the Section required to
ii... i - 14 -
enter a competition. There is of course, no issue before this
panel that the Employer erred .in its failure to post other
positions within th,e Section, if in fact they were new positions.
Accordingly, this grievance is dismissed.
DATED at Brantford, Ontario, this 27th day of March, A.D.,
1907’.
- Vice-Chairman
5. 3. Dunkley - Member ‘-iLr_&
1.3. Cowan - Member