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HomeMy WebLinkAbout1987-0114.Negusanti and McCubbin.90-07-19n n BOARD COMMlSSl(j,,, DE SETTLEMENT RkGLEMENT DES GRIEFS BETWEEN .14/87, IN THE MATTER OF AN ARBITRATION Under THE CROWN ENPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEXENT BOARD OPSEU(Negusanti/NcCubbin) The Crown in Right of Ontario (, Ministry of Environment) - and - BEFORE: J. W. Samuels J. McManus F. Collict FOR TEE GRIEVOR: R. Wells Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE ERPLOYER: B. Adams Staff Relations Officer Staff Relatons and Safety Ministry of Environment HEARING: January 23, 1990 June 18, 1990 Grievor Employer Vice-Chairperson Member Nember - and - This case concerns the classification of two positions in the front line in the attack on environmental pollution in ,Northeastem Ontario. In mid- December 1986, Messrs. Negusanti and McCubbin grieved that they were improperly classified. In brief, the grievors worked (and Mr. Negusanti still works) in the Northeastern Region of the Ministry, a vastiregion bounded by the French River on the south, Wawa/White River on the west, James Bay on the north, and the Quebec border on the east. In this huge area, they were responsible together for two quite distinct :programs-pesticides control, and monitoring terrestrial effects of environmental contaminants. The pesticides control program is designed to ensure that pesticides (herbicides, insecticides, and fungicides) are used according to the law (primarily the Pesticides Act 1980). This ;involves the examination and licensing of pesticide users; the investigation of improper transportation, storage, sale or display of pesticides: the monitoring of pesticide use; and I other activities involved in the enforcement and application of the relevant legislation. The terrestrial effects monitoring program involves the assessment of the impact of air pollution, pesticides, and other environmental contamination on the vegetation and soil (“phytotoxicology”); the I investigation of complaints concerning damage to vegetation and soil caused by environmental contamination. air;pollution and pesticides; and the development of remedial strategies for the revegetation of areas subjected to environmental disturbance. I I At the time of the grievance, hlr. Negusanti held the position of Environmental Biologist (Terrestrial Spcciaiist), and was classified as a Pesticides Officer 3. He spent roughly 600/i of his time on the terrestrial effects monitoring program, and 40% of his iime on the pesticides control program. Mr. McCubbin held the position: of Environmental Biologist (Pesticides Specialist), and was classified as a Pesticides Officer 3. He spent 3 roughly 70% of his time on the pesticides control program, and 30% of his time on the terrestrial effects monitoring program. Both grievors claimed that they ought to be reclassified “in an appropriate classification for example Resources Manager 3”. And, during the grievance process, the grievors claimed that the reclassification should be retroactive to September 1985. After the grievances were filed, the grievors’ tasks were reshuffled so that each man spent roughly 50% of his time on each of the two programs, and they were both given the same position title of Pesticides and Terrestrial Effects Biologist. A new position description was developed in April 1987 (it is appended to this award as Appendix I), and the ~grievors were reclassified as of December 1, 1986 as Scientist 3. The grievors did not accept this as an appropriate reclassification. However, it was agreed by the parties that the new position description is accurate. In September 1987, a new classification series was issued- Environmental Officer. Their case not yet having been disposed of, the grievors now claimed that they ought to be classified as Environmental Officer 5 or 6. At the outset of our hearing, they reduced their claim to Environmental Officer 5. During the course of our first day of hearing, the parties agreed that the grievors would be reclassified to Resources Manager 3 from twenty days before the grievances were filed to the introduction of the Environmental Officer series in September 1987, and that they would be compensated for the difference in salary for that period. The Board told the parties that it would order that interest be paid on the sums due, at 10% per annum from the date on which any sum ought to have been paid up to the date on which it is paid. The Union abandoned the claim for retroactivity earlier than twenty days before the grievance. At the second day of hearing, the Union acknowledged that the grievors would not be properly classified within the Environmental Officer s- 4 series, because the Ministry had established in evidence that the grievors’ positions required “full professional status”, and such positions are expressly excluded from the Environmental,Officer series. Hence, the Union now claimed that we should order that the grievors be properly classified as of twenty days before their grievances were filed, and we should remain seized to determine’ whether or not our order has been implemented properly. On the Ministry’s side of the table, at our first day of hearing, the Ministry acknowledged that the grievors were never properly classified as Scientist 3. The Scientist series covers employees who work in laboratories. The grievors do not work in laboratories. They work in the field. However, at our second day of hearing, the Ministry suggested that perhaps the best fit for the grievors was the Scientist 3 classification and we were asked to consider this as the appropriate classification. In sum, this leaves us with the issue of what is the proper classification for the grievors’ positions sin)ce late November 1986. And for Mr. McCubbin, the issue no longer exists after November 1988, at which time he moved to a managerial position with the Ministry in Hamilton. I The position description in Appendix 1 is quite lengthy, and therefore covers most of what needs to ,be said about the grievors’ positions. We will concentrate our remark~s on several points that bear emphasis. I The work which the grievors do requires a university degree in science and at least several years of related experience in the area of environmental contamination. It is scientific work. It is not simply the work of a technician. The grievors are not simply collecting data and samples. They are developing tests and testing methods. Their 5 observations in the field are based on their scientific knowledge and experience. Mr. Negusanti has a degree in Forestry and is a member of the Ontario Professional Foresters Association. Mr. McCubbin has an Honors B.Sc. in Zoology. In the region, the grievors are the experts in their fields. They are the people to whom one turns for expertise in pesticides and phytotoxicology. Furthermore, the grievors are not only doing testing and monitoring. A significant part of their job involves administration, investigation and enforcement, in particular with respect to the pesticide control program. Thus, they are by no means confined to scientific work. Are they properly classified as Scientist 3? If not, would they be properly classified as Resources Manager 3? Or Environmental Officer 5? Or is it necessary to create a new’classification for them? The Preamble to the Scientist Class Series and the Standard for Scientist 3 are appended to this award as Appendix 2. The first sentence of the Preamble says that these positions “cover analytical laboratory work”, and this basic point is reaffirmed in the first sentence of the Scientist 3 Standard-” This is responsible scientific work performed in a’ provincial government laboratory”. This is fundamental. This Series, and this Standard, describe positions which involve work in a laboratory. The grievors do not work in a laboratory. They work out in the field. While many of their scientific duties are similar to the characteristic duties described in the Scientist 3 Standard, these duties must be read in context. They are duties to be performed in a provincial government laboratory, and that’s not where the grievors work. We would be stretching beyond reason the meaning of clear English language if we were to find that the grievors fit within the Scientist Class Series. They are not properly classified here. The Standard for Resources Manager 3 is found as Appendix 3 of this award. As it says in the first paragraph of this Standard, a Resources Manager 3 is associated with the management of Conservation Authorities. This point is even clearer in the Standards for the other three levels of the Resources Manager Series. The first sentence of the Class Definition for Resources Manager 1 says “This class covers positions of trainees in professional natural resources management work, associated with Conservation Authorities under the supervision of a senior Resources &Ianager” (emphasis added). The first sentence of the Class Definition for Resources Manager 2 says “This class covers positions of emplqyees engaged in professional natural resources management work, under the general supervision of a senior Resources manager in Head Office,and directlv associated with Conservation Authorities as Resources Managers in the field or indirectly as assistants to specialists in Head Office” (emphasis added). And the first sentence of the Class Def!nition for Resources Manager 4 says that “This class covers the positions of Head office employees I engaged in professional natural resources management jn the Conservation Authorities DroPramme” (emphasis added). / It is clear that this series covers positions involved with the management of Conservation Authorities, and this is not what the grievors do. They would not be properly classified as)Resources Manager 3. 7 The Preamble to the Environmental Officer Series and the Class Standard for Environmental Officer 5 are appended to this award as Appendix 4. The Preamble says that the series “covers positions responsible for data collection, inspectional, investigational, enforcement, and preliminary evaluative and interpretive work on matters relating to environmental assessment and pollution control in the natural environment”. This would seem to cover the grievors’ work. However, the Preamble excludes, inter alia, “Positions requiring full professional status for the applications of scientific and engineering principles found in such disciplines as engineering, biology or chemistry”. Do the grievors’ positions require “full professional status”? The Ministry’s cross-examination of the grievors was aimed primarily at demonstrating that their jobs do require full professional status and that the grievors fill this bill. At our second day of hearing, counsel for the Union conceded that the Ministry had done a convincing job of demonstrating that the grievors were not just investigators or enforcers or technicians, and that the Union accepted that the grievors had “full professional status”. It is not clear what is meant in the Preamble to the Environmental Officer Series by the w,ords “full professional status”. In engineering, there is an official designation of “professional engineer”. But what does it mean in the context of biology or chemistry, or similar scientific fields? Without coming to any definite conclusion on this point, we are content to accept the mutual understanding of the parties in this case that the grievors do have “full professional status”. We note that the Knowledge required for the E05 level does not include a university degree, whereas the grievors’ job description does require this advanced level of education. Hence, it is clear that the grievors’ positions require greater knowledge than is required for the E05 classification. In these circumstances, the grievors cannot be classified within the Environmental Officer Series. Thus, we must conclude that the grievors are not properly classified as Scientist 3, and we have not been shown any existing classification which would be appropriate. There appears to be no “best fit” which is not deficient in some significant way. The Scientist Series is meant for people who work in laboratories, which the grievors do not do. The Resources Manager Series is meant for employees who work in the Conservation Authorities program, which the grievers do not do. And the Environmental Officer Series specifically excludes positions requiring “full professional status”, which means that the grievors positions are excluded. We are left no choice but to make a “Berry Order”, as we were counselled to do by the Divisional Court in: Berry, 217/83. In Berry, the Board (a panel chaired by the same Vice:-Chairman who now has, the privilege to write this award) found that the grievors were not properly classified in their existing classification, bit would also not be properly classified in the classification requested. So the grievances were dismissed. This decision was appealed to the Ontaiio Divisional Court, which overturned the award in a decision dated March 13, 1986. Mr, Justice Reid held that the governing provision was section 18(2)(a) of the Crown Employees Collective Bargaining Act, which; gives an employee the right to grieve that his position has been improperly classified. The collective agreement cannot limit this right. Pursuant to section 19 of the Act, the Board is to “decide the matter”, and the matter grieved was improper classification. The Board’s jurisdiction is /unrestricted. Its mandate is remedial. (See page 20 of the Court’s decisio:n, found at (1986). 15 Ontario 9 _ 9 Appeal Cases 15.) The Court ordered that management must create ‘a classification which is appropriate. We order that the Ministry create a classification to suit the grievors’ positions, and that a suitable salary be agreed between the parties pursuant to Article 5.8 of the collective agreement. The grievors should be paid any difference in salary from twenty days before they filed their’grievances up to today (but for Mr. McCubbin, only up until the date he left his position for the responsibilities of management in Hamilton), together with interest at 10% per annum, compounded annually, on each and every sum from the date it ought to have been paid up to the date of payment. We will reserve our jurisdiction to determine any matter relating to this order, if the parties have any disagreement. Done at London, Ontario, this 19th day of July , 1990. el$ Vice-Chairman _--2 a-j&. /L I CL c*u.), J. McManus, Member p/:qv F. Collict, Member