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HomeMy WebLinkAbout1986-0909.Cabeza et al.89-02-15EMP‘OYES DE LA COLKXWNE DEL’ONTARIO CQMMISSION DE REGLEMENT DES GRIEFS IN THE I~ATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT before THE GRIEVANCE SETTLEMENT BOARD Betwc-en: -- Refore: --- Hearing: and The Crown in l?ight of Ontario CbJinistrv of Cahour) 8. M. Epstein \lic.e-Chairperson J. Anderson Member E. Orsini Flember R. Hess &=lls COUllSC1 fowling anr’ Hmdprson Barristers and Solic,itors F. Bruce Fitzpatrick COUllSC=l tIic,ks, Morley, Hamilton, Stewart, Storie Barristers and Solic~itors Grievor 2 - The grievers are X-Ray Safety Inspectors in the Ministry of Labour. They are all classified as Technician 4, Radiation. They say that they are improperly classified and seek a declaration from this Board that they are improperly classified and that the matter be remitted to the Ministry for proper classification. ,~he three grievers Cabeza, Milosa.vljevic and Trankovits were, at the time of the grievance, carrying out the duties set out in position specification and class allocation C.S.C. 6158 as X- Ray Safety Inspector. The position specification is annexed to these reasons as Schedule “1” and it is common ground between the parties that the specification sets out accurately the task being performed by the grievors. Annexed to these reasons as Schedule “2” is the preamble to the class standard entitled "Technician, Radiation Class Series" and the description of Technician 4, Radiation, which contains the class-definition. The grievors say that the classification, Technician 4, Radiation, omits a major aspect of their job functioning. Counsel for the grievers say that the job description contained in Schedule “2” really describes technical testing work in the field or in the laboratory and omits reference to the general enforcement duties under the Occupational Health and Safety Act of Ontario and that it is these duties upon which much of the time of the grievers is devoted. The evidence of Mr . - 3 - Milosavljevic, which evidence was agreed to be applied to the other grievors, indicates that a good deal of time is spent by the grievers in interviewing, advising, and issuing work orders under the provisions of the Occu ational < Ontario. That appears to be a fundamental aspect of the position which counsel for the grievors points out is virtually not mentioned at all in the classification. The Board first takes note of the fact. that classification of Technician 4, Radiation was issued in June of 1966 and does not appear to have changed. The very fact that it was dated some 22 years ago does not necessarily mean that it cannot apply in 1988, but this Board feels that there can be some circumstances where the classification becomes so dated, it simply becomes outdated. We are all of the opinion that this has occurred in the matter. It is to be noted that the present position specification calls for persons who have graduated from a recognized university ~. and a related scientific programme or an equivalent combination of training and experience. The grievors in this case all have science degrees from universities and .in one case, one of the grievors has a master’s degree in science and in engineering. It is obvious from the description of the job given by the grievor that it is not likely that the Ministry wou1.d have employed - 4 - per sons who did not have at least a university degree and significant training in this important position. The evidence of the grievor establishes that the grievors inspect all facilities where x-ray machines are in use other than in use for human exposure. That includes the industrial use of x- ray machines, veterinarian facilities and educationai institutions for training programmes. About 50% of the grievor’s time is spent on inspection and the balance of the grievor’s time is spent on preparation for inspection by reviewing files on the last inspection, reviewing corrective actions taken, reviewing previously issued orders, checking compliance and then preparing instruments for proper testing at the job site. Par.t of the job of the grievor is to be “on top of” new x-ray units being introduced to industry and checking their hazard potential. This involves reading literature on the new equipment and talking to suppliers. The grievor also spends time participating in scientific experiments which are designed to confirm data already published in scientific papers about radiation protection. All of the grievers are issued wit‘h a card which constitutes a certificate of appointment under the Ontario Ministry - 5 - of Labour as an inspector under the Occupational Health and Safety Act and the card and the S~~CU~R authorize the inspector to exercise - all of the p0wer.s conferred upon an inspector under that Act. It appears to this Board that the real role of the grievers are enforcement officers as weil as technicians. The class standard describes a strictly technical job and there is nothing in the class definition about the enforcement duties under the Occupational Health and Safety Act. Given the description of tbe work by the only witness who testified on behalf of the grievors, the Board concludes that a substantial part of the task of the grievers is missing from the class standard and accordingly we conclude that the grievers have been improperly classified. In accordance with the decision of the Divisional Court in Ontario Public Service Employees Union and Carol Berry et al v. The Crown in Right of Ontario (Ministry of Community and Socials Services), this Board has power to order that the Ministry re- classify the grievers if they did not fit within the category that the grievors were seeking. In this case, the grievers originally took the position that they should be classified as Scientists (4) Atypical, but in the course of argument conceded that there was not sufficient evidence for the Board to justify that finding and accordingly the grievers seek to have the Board simply order that the Ministry re-classify them. The Board has concluded that. the - 6 - grievers are improperly classified and accordingly we have come to the conclusion that the grievances should succeed and that the remedy in this case is one of an award of directing the Ministry to re-classify. There was some argument as to the time period during which the re-classification should take place. The Board feels that a ninety day period shouid be sufficient and accordingly directs that the grievors be re-classified within ninety days. The grievors raised the issue of retroactivity with respect to the re-classification. The grievor, Mr. Milosavljevic wrote to his supervisor on March 7, 1986 requesting re- classification retroactive to February 11, 1985. In response to the memo, the grievor’s supervisor wrote on March 12th that he would support the efforts to obtain such a re-classification although the supervisor pointed out that he was not empowered to re-classify. There were further memos exchanged, the last being on March 27, 1986 when the grievor wrote again to the supervisor setting out the reasons for re-classification. In all of the circumstances of this case, and because the grievor attempted to resolve the issue internally and seemed to have some support for his position from the supervisor, we think that a re-classification date of April 15, 1986 would be - 7 - reasonable for the grievor, Milosavljevic. We no,te for the record that the grievance was filed on July 3rd, 1986. With respect to the grievance of Cabeza, we think there is no reason to vary the normal rule that the re-classification should be effective twenty days prior to the date of the grievance. That applies similarly to the grievor, Trankovits. Since the re-classification wiii aiso a.mount to an issiie of compensation, we believe interest should run from the date of re-classification as called for in this award. If there is some problem with the calculation of that interest we may be spoken to. Accordingly, the grievance is allowed by declaring the grievors are improperly .classified and the matter is remitted to the Ministry for purposes of establishing a proper classification for the grievors. We will retain a jurisdiction pending implementation of the terms of this award, including retroactivity and interest. cuss uEFIxIT10?4: Under general supervision, employees in positions allocated to this class perform a series of complex and/or saecialtv tests in routine or research projects. These responsible positions may involve the supetision of junior technical and other staff. These employees organi:e the work of their unit, compile detailed records of results and present them in an organized form to their supervisor. In non-supervisory specialist positions; these employees perform difficult and demanding determinations in the laboratory, involvjff compounds tith a variety of radioactive isotopes having different epes of emission, energy and half-life. Under supervision, they conduct radiochemical research and develoment requiring a sound knowledge of methodology to interpret the results. I'his mrk involves careful correlation of chemical yields and measurement by counting techniques involvLng critical samples preparations such as are required in the determination of radioactive isotopes of bimnuth, lead and polonium in the uranium-thorium series and of Sr99, Sr90, Y90, Cs137 and K40 inmilk. In other positions, under the general supervision of a scientist, they use a wide ranee of complex equiment such as: air sampling devices; proportional gas flow counters; liquid scintillation, gamcm ray and alpha ray spectrometers. The latter require a sound knowledge of decay schemes, enerz characteristics, absorption factors etc. for their interpretation. Particularly for alpha ray studies, where very thin, uniform sources are required, calibration requires careful preparation of samples. These employees may be required to carryout repairs on equipment. In the field, without direct supervision, these technicians carry out monitoring and safety surveys of medical and industrial radiation producing installations of all sites and complexity, and carry out preliminary investigations and assessments of complex e.xposure problems. In such positions they perform duties such as: measure the output and the strap radiation from X-ray equipment or sealed radioactive sources of radium or cobalt used in radiography; select, using judeTent based on bowledge and experience, environmental samples near nuclear reactors, in plants using radioactive isotopes, in ties etc., for determination of radioactive content; select samples of radioactive biota; collect radon samples in plant atmospheres or in the breath of sorkers using’ radium. These employees normally are responsible for follow-up visits and surveillance in situations where a supervising scientist has conducted a preliminary investigation and they prepare technical reports and assessments for professional supervisors. The have final respcnsibility for the validity of all results obtained and ray be require:: to appear in court. as an expert hitness. . . . ...‘- I . 16086 -2- Technician 4. Radiation (contqd) QllUFXATIOXS: 1. Grade 12, including grade 12 mathematics and science; preferably grade 13 and completion of a recognized specialized or general advanced training course. 2. A minimum of 10 pears? experience in related work; (for employees with grade 13, eight years’ experience in related vork may be accepted) DR a combjnation of education, practical experience and self-teach& acceptable to the Civil Service Commission as the equivalent. 3. Supervising ability; analytical abilitp; integrity; keen powers of cbsermtion; tact; good judgment; ability to deal with the public. June 1966 Done at TorOntO, Ontario, this 15th day of F&nmq~, 1989. (L t For QC UC+ Pooltlon SpocUlcatton P Ct88a Attocatlon-CSC 6 (Rrkr IO ck of km br mmpbhon lnenuctiona) Y I PrMn. wbl nvrMr I NWrrU- :tor 108~26lx WI Cb”+h. -*nn-~-wmn.r-~l N/A PoIhll ZN mu0 mnqo -0 Paal3 1, I PcMba CoQl ‘i---.--: Tech, Ionirfng Radiation 08-2600-40 c4mtnbmdcoc Technician 4, Radiation 16086 IDhhbm Occup4tlonal klealth 6 S&sty Lootlo” tudiee 6 Scrvr, ibdiation Protection Serv 81 Resourcea ltoed, Rexdela wao(Pbo Provbm *aJp bsdmlup to: Immal~U Suwruhor~l ml, No. et ~itbm Bupwkor’l p8dtbn codr NO. of plrn 2 Supervisor, X-kay Safety 08-2600-38 2. rurpma of paickn lmtlv doss this wtbn l rlst?l To conduct x-ray safety inapectione to _cneure~ cpmpliancc vith end enforcement of the Occupational Health and Safety Act and &g&&ione. To .advira and ~8ist other breaches and Kiniatries in matter8 of ionizing radiation protection- invastigationr and meaeuremente of io&ing r’adiation; , aeeirt in field and lrboretory instruments fcr measurement of ionlring’r4diition. To maintain, test and calibrate .’ t btb, nd rDbtd ab Id”! in .“wbyI “quid ,O do, ti &lrhv? lndlum pranm d cl”” tpnt m uh 6,““) . Conduct6 initial, cyclical and epecisl~i~epactione of‘workplacee to ensure cbmpliance vith legia.lited etandards as they apply to the safe uee of x-r&pa by performlw euch tanks as: - planning and organiring workload, scheduling end plnnaing inepsctlone no that they are done effectively and efficiently; determining l pproprirte cyclea for follov-up or ra-inspection; 60% - intervieving owners. employers and vorkers re: use of x-ray aourcem, rafaty devices and procedures, use of doeimeterr, unresolved concerne about x-r59 rafety; - examining and testing safety especte of x-ray rourcm l md inrtellatiooe; taking photographs where appropriate , measuring x-ray fieldr to eomm cemplience ulth regulated limita and rtandarde; - identifying contraventionr of the legislation .and iaeuing vritteo orderr, imPoring a time-llmlted compliance or etopping work; - - preparing end presenting an inspection report to be posted in the workplace, confirming orders and advice; - investigating unrerolved x-ray aafety concarne; providing dvica, irruing orders vhere ncceeeary. diacuraing any iaeuer related to x-ray eafsty or orden irrued; - providing vritten information to eupervisor to etuure thet racorde l re up-to-dete, accurate and complete; - referring queries on other health end safety mettern to the appropriate brench; - taking end recording note8 and data for report/memo preperotion; - reporting on potentially contentioue issue8 , rituetiono end occurrencea. (Continued...) Skilh md knarladte tvquhd to perform jek n full we&g brl. llnelaa mw&av mlntw, 01~03. n adimb&l .raduation from e recognised univereitp in a related l cientlfic program or an equivalent ombination of treining end experience. Experience in protection from ioniring redietion and nderstanding of radiation protection principlea. Good knowledge of the Occupational Technician 4. Radiation en. Eksimd Ihi, pmltla I. Loo,bnu rim m. Chil wi Camlrbn cbuifiutbn ltmdr& bf t!n wlmlng -: Without dlrecr supervlaion. in rhe fieid carrier out monicaring hnd safety euxvay8 of industrial radiation producing installationa of all eizee cod cmplexity; cerriee out preliminary investigationa and asseseaents of complex exposure problase. Measures the output and the etray radiation from x-ray equipmnt or realed radioactive BO”t.CC.9. Responsible for follorup visits and surveillance, and predare reports and aseeesments f professional eupervisor. Have final responsibility for the validity of all results otcained and msy be required t appear In court a.9 an expert vitness. / A 0 TVP emhm&9 nmm I7 ,Fxl V. E. Peperkorn Instructbnr for compiotlng form CSC-6150 ‘. i -. 2. Providee advice and aaxistence In: other Brencher end Mnistrier; a) meter8 of protection from Ionlxing radixtion for b) field and laboratory invertlgetione l d.me~urenent8 of ionising radietion by perforeing such task8 ae: - accoepanying other member8 of the Radiation Protection Service or iaepectore from other Branches or Mlnir~riex on Inrpections/inveetigationr; 202 - making such teete or meeeuremente ee may be neceesexy to eateblieh the nature of radiological hazard@; - operating x-rey 8ource8, exposing isotopic l ources of redietion: - mesauring Ioniring radiation Inteneitier and energy xpectrx wing appropriate inatruxentr; - recording d&ta end observations; writing reports; - interconnecting modular componentr, characterierice of each: having regard for the deteiled l pecielixed - participating in nucleer emergency planning exercirea under the .generd direction of the Emrgency Planning Officer: - providing comentx end wggestioru concerning the exercirer; - carrying out eeaigned role in the event of actual incident or emergency involving potential rxdirtion exposure. 1. Ensure8 that corrective action IO taken where x-ray safety 18 inedequate by performIng l uch teeke ee: - cxplelning end leaving th notificetion of compliance form, verifying that written notification of compliance ix received for eny ordare ixrued, conducting l follow-up inspection where notification ie not received; IO2 - recomending prosecution or other special action for aon-co~liaace with legislation by preparing Crown brlefa; - prcpering deteiled reporte, rpecial action reporte. etc., including recowndationx, for u8e by Lagal llranch, Mn$etry, Medical Officer of Health; - l seiatlng in a court action by aveering the InformatIon and eumn8. l erving aa vitnesa for the proeecution in court and reporting the outcoaz of the ectlon. (Continued...) --, - I 5. 4 4 I - 3- OS-260040 - X-MI SAFETY INSPECTOR 3. Cutiee and releted taske (Continued) 4. Hainteine, teete. calibrates end repairs instruments for the maeurement of lonixing radietioa by performiog such ta&e ee: - verifying periodicelly the correct operation of Inetnmente; 5x - checking periodically the calibration of inetruaente, end recelibrating where appropriate; - identifying and repairing electronic and mechanical faultr in Inatnuwnt~. 5. Perforfm other related dutiee such ae: - keeping ebreeet of current developments in the field of lonieing radiation by: 52 a) reading relevant booke and wticles; b) ettending cooferencee, coureem, etc.; - replying to enquiriee end providing information to ower8, employerr, wrkerr. aecnbere of public; - ~8 aeeigned. 4. Skills and knaledge required (Continued) Health & Safety Act end Bagulatione relevant to x-ray l efety. Knowledge of relevent HIoietry and Branch policier cad proceduree. Ability to identify aad l reluate x-ray ufety hezerde. c.ood coommication and interpersoaal ekille. Ability to preperm repotto, plan aad organhe l ork and work independently. Valid driver’e licence. I have reed thir Podtion Specification md I underetand it.