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HomeMy WebLinkAbout1987-0626.Jirsa.92-01-09626/87 IN TRB RATTER OF AN ARBITRATION Under TRB CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Jirsa) Grievor BEFORE: FOR TRB GRIEVOR FOR THE EMPLOYER HEARING - and - The Crown in Right of Ontario (Ministry of Agriculture and Food) . Employer R. Verity Vice-Chairperson J. McManus Member E. Orsini Member S. Watson Counsel Gowling, Strathy.& Henderson Barristers & Solicitors C. Slater Senior Counsel Legal Services Branch Management Board of Cabinet October 6, 1989 June 13, 1990 November 23, 1990 June 19, 20, 21, 1991 August 29, 1991 2 DECISION The grievor,' Libuse Jirsa, works for the Ministry as Microbioiogical Control Technician at the Central Milk Testing Laboratory (C.M.T.L.) at Guelph, Ontario. In a grievance dated February 10, 1987, Mrs. Jirsa alleges improper classification as Technician 2, Chemical Laboratory. She requests that she be properly classified and seeks reclassification in a separate series as Technician 3, Medical Laboratory. However, effective September 1, 1987, new classes of Technologist 1 - 3, Medical Laboratory were established and the existing classes of Technician 1 - 4, Medical Laboratory were ‘.. deleted. At the hearing, the grievor claimed reclassification as Technologist 3, Medical Laboratory or Technologist 2, Medical Laboratory. In the further alternative, a Berry type of order is requested. The grievor's claim that she is currently misclassified was based solely on the class standards approach; namely, the assessment of her duties and responsibilities against the relevant class standards. The panel took an extensive view of the Central Milk Testing 3 Laboratory in Guelph on the second hearing day. The present Stone Road facility opened in March, 1985 and replaced a computerised laboratory in Guelph constructed in 1967. C.M.T.L. is a large multi-purpose, "state of the art" facility designed to analyse and test, twice a month on a routine basis, the composition and quality of raw, unpasteurized, "farm gate" milk from 9,200 Ontario milk producers to ensure compliance with Ontario standards. Raw milk is tested for milk fat, protein, lactose and solids-non-fat content and the results are forwarded to the Ontario Milk Marketing Board for payment to producers. Penalties are assessed by the Milk Marketing Board pursuant to the regulations under the Ontario Milk Act, based on C.M.T.L. test results, for high cell count micro organisms, .the presence of antibiotic residues (i.e. penicillin), : somatic cell counts and added water. It was comforting to be told that pasteurisation destroys all pathogenic organisms in raw milk. The grievor has worked at C.M.T.L. since 1972 using.Infra Red technology in a variety of tasks including' chemical testing. The first microbiological testing of milk occurred in the spring of 1985 with the opening of the new laboratory. Since then, the Ontario Ministry of Health no longer tests producers' raw milk for antibiotic residue. At some point in 1984, the grievor was assigned the position Microbiological Control Technician to prepare for future testing. In the new facility, there are essentially three functions of the microbiological testing area of the lab: (1) Testing for micro organisms; (2) Testing for inhibitor residue 4 (antibiotics); and (3) Testing for somatic cell levels. The microbiological testing area is composed of two parts - a large electronic quality testing laboratory which at the time of the grievana employed four technicians; and a smaller microbiology laboratory where the grievor worked. The four technicians in the quality testing lab operate electronic equipment which includes the PETRIFOSS instrument, the INOFOSS instrument and the FOSSOMATIC instrument and two colony counting machines called BIOFOSS. The grievor's job is to perform a number of standardised manual quality control tests to monitor the electronic testing equipment and to perform confirmatory tests for inhibitor levels as well as additional testing of samples for sterility (Vial Sterility Testing). The quality control tests performed by the grievor are prescribed in the fifteenth edition of the textbook "Standard Methods for the Examination'of Dairy Products" and the C.M.T.L. Operations Manual. For the most part, the grievor's duties and responsibilities are reasonably accurately stated in her Position Specification and Class Allocation form, dated September 1986, which reads in. relevant parts: Purpose of position To provide all calibration material to each of the electronic milk quality testing instruments. To conduct parallel tests using prescribed standard methods to establish accuracy and reproducibility of instruments. 1 5 To perform confirmatory tests on producer samples showing positive on antibiotics or out of range, or abnormal on bacteria count with instrument methods. Duties and related tasks Under the guidance of the Microbiological Analysis Control Scientist or Laboratory Supervisors 50% - making direct microscopic somatic cell counts on standards prepared in the control laboratory on a weekly basis: performing parallel direct microscopic somatic cell counts on producer samples with electronic instrument to establish calibration level and to maintain relationship of counts between fresh producer milks and preserved standards; providing comparison tests on selected producer milks with standard plate counting procedures described in standard methods, for calibration of automatic bacteria plater and electronic colony counter; performing standard disc assay with milk and antibiotic standards to confirm levels of instrument results; calculating required statistics on comparison of results between standard control tests and instrument tests; iffrequired, performing brucellosis ring tests to help monitor instrument calibration. 50% To perform confirmatory tests on ali,producer samples where positive results were obtained by instrument for antibiotics or bacteria count, out of count range by: repeating test using standard disc assay on the next available sample from that producer; repeating test with selected dilution of.plate loop count to establish actual count for producer in question; performing differential counts, coliforms, psudomonas, pre-do,minant organisms, staphilococci, salmonella, etc. as required Perform related duties such as: preparing all media, standards, dilutions, buffers, indicators, stains, and/or chemical solutions required for any ,of the above bacterialogical tests and procedures; performing random sterility checks on re-washed polycarbonate sample vials on a regularly scheduled basis to monitor proper functioning of the automatic vial washing, sterilising and capping machine; maintaining all necessary analytical and other records; advising supervisor of need to re-order supplies; demonstrating procedures for employee training and to lab visitors; performs other duties as assigned. 6 Skills and knowledge required to perform job at full working level Secondary school, including mathematics and science courses: a good working knowledge of chemical/microbiological analytical instruments gained through progressively responsible laboratory experience; an understanding and appreciation of classical analytical methods; alertness; keen power of observation; neatness, good manual dexterity; and the ability to maintain harmonious working relationships with other staff. At the time of the grievance in February 1987, Mrs. Jirsa reported to Laboratory Supervisor Fred Fletcher. Several months later in either April or May, 1987, Hill Lachowsky was appointed Microbiological Analysis Control Scientist and a new reporting relationship was then established. However, Mr. Fletcher continues to provide some supervision to the grievor'as well as to some 22 other technicians and lab attendants. In Mr. Fletcher's words: "it is a team approach". As indicated previously, the primary function of the Microbiological Laboratory is to provide quality control testing and to calibrate sophisticated electronic quality testing instruments. The grievor testified in some detail as to the various microbiological tests she is required to perform including the standard plate loop count for total bacteria for the calibration of the PETRIFOSS instrument, the microscopic somatic cell count for calibration of the FOSSOMATIC instrument and the confirmation of the INOFOSS instrument for the presence of inhibitors, i.e. for antibiotic positive samples by the standard 7 disc assay method. Since 1986, a lab assistant has been assigned to assist Mrs. Jirsa. According to the grievor's evidence, 50% of her time is spent performing the disc assay test and 90% of. her work is performed in the microbiological lab. She receives samples from field officers (primarily the Delvotest), from dairies, and occasionally from veterinarians. The grievor is required to confirm all Delvotesting by using the disc assay test. At the time the grievance was filed in February 1987, in addition to performing numerous other tests and procedures, the grievor was required to do taste testing of "finished" milk and cottage cheese. However, these tests were deemed too subjective and have now been discontinued. In September, 1990, Mrs. Jirsa was. no longer required to do milk taste testing. The grievor is currently classified as Technician 2, Chemical Laboratory. The preamble to that Class Standard reads as follows: PREAMBLE MEDICAL AND CHEMICAL LABORATORY TECHNICIAN CLASS SERIES KINDS OF WORK COVERED: Positions covered by these class series provide technical assistance to the medical, scientific, engineering, chemical .and other professions in a variety of medical and chemical laboratories throughout the service. Incumbents of positions in these classes perform a variety of tests and procedures of varying complexity, all of which require careful attention in their performance and accuracy in the recording of data, for quality control purposes; to provide a diagnostic aid to the medical profession; as an aid in forensic chemistry; in support of a scientific research programme: as a service to industry, etc. 8 CIA!%3 ALLOCATION AND DEFINITION OF m: While the technical complexity of the work performed at related levels may be the same, the field of analytical laboratory technology has been separated into two class series in order to more clearly differentiate work areas, to provide an equitable evaluation of related positions and to facilitate classification procedures. It is recognised that some tests in each field may be essentially the same; that a chemical ana:lysis function may occur in medical laboratories and a bio- chemical, bacteriological or a related function may occur in chemical laboratories. However, the bulk of procedures and tests in one kind of laboratory will differ from the bulk of those encountered in the other. The separation may be defined as follows:- 'JRCRNICIAN 1 - 5, MEDICAL LABORATORX: - This class series covers positions of technicians engaged in the analysis of predominately biological materials such as blood, sera, tissue, bacteria, viruses, etc., by chemical, bacteriological or related techniques. The purpose is to provide technical assistance to the professions of medicine (including forensic and public health medicine), veterinary science, and teaching, and to experimental projects; as an aid t.o diagnosis for medical or medico-legal purposes or as a check on conditions affecting public health. TECHNICIAN 1 - 5. CERMICAL LABORATORY: - This class series covers positions of technicians in the analysis, usually for the identification and/or quantation of chemicals or substances of predominantly organic materials such as soils, plants, rocks, metals, plant products, gas, air, manufactured products, etc. The purpose is to provide technical assistance to research projects, as a service to the public, for quality control purposes or to detect contaminants affecting health. These positions encompass a wide range of technical duties. Technical complexity, technical competence and the ability to supervise subordinate staff are aspects to be considered in the allocation of positions. Supervision of technicians and other laboratory staff is an influential factor in allocations to the upper level of the class series. In both cases the tests performed are classified generally into three categories of "common", "complex" and "specialty." "Common" tests and procedures are defined as those which do not require exceptional knowledges, skills or judgment in their performance because the methods are fully prescribed, the manipulations are not difficult to perform and the results are readily recognized. Such tests are learned after brief 9 instructional demonstrations and the employee's performance improves as manipulative skills and familiarity with work processes are acquired through experience. This category may be further sub-divided into "simple" and "standard" tests and procedures. As a general rule the performance of a limited number of "simple" tests on a production line basis, following prescribed procedures, would result in allocations to the Technician 1 level. The performance of a number of "standard" tests where the methods are fully prescribed but the variety is more dispersed, some elementary judgments are made and supervision is not closely applied except when new procedures are used or problems develop will generally result in allocations to the Technician 2 level. "Complex" tests and procedures are defined as those which require highly developed skills, judgment and experience in their performance because results may be confused with others of similar qualities. Procedures may require modification due to differences in batches of ingredients as determined by results with controls. Tests may be "complex" for different reasons, thus this category may be sub-divided into "difficult" and "intricate" tests andprocedures. "Difficult" in this context refers to tests and procedures, the performance.of which require judgment in the selection of alternatives and variations to standard procedures, the careful execution of a series of exacting manipulations of materials and apparatus, the -operation and minor maintenance of sophisticated and sensitive laboratory instruments and the accurate recording of procedures and results. The performance of a variety of difficult,tests would generally result in such positions' being allocated to the Technician 3 level. "Intricate" in this context means those tests and procedures which require a large number of operations with many possible sources of error at various stages and require a high degree ~of skill and judgment in such functions as: - utilizing reference source to determine modifications of apparatus and variations of procedures; selecting, modifying and adapting test procedures to obtain optimum results; recognising and interpreting reactions which are difficult to observe and which can significantly affect the outcome of the test; and computing or interpreting interim and final test results which require the application of advanced mathematical techniques and a sound knowledge of scientific methodology. The proper performance of "intricate" tests and procedures requires an understanding of scientific processes at the professional level and employees performing such tests would normally be a Scientist, but they may, in the absence of qualified professional staff, be performed by a highly skilled and experienced Technician. "Specialty" tests and procedures are defined as those which are carried out without definitely outlined methods, 10 usually requiring frequent modifications, and where special or modified apparatus or equipment is utilized. Interpretation of results is based on knowledge and experience or on a comparison with standards from reference laboratories. Tests and procedures of this nature are usually found in research settings and normally are closely directed to professional personnel but the technical work of a sub-professional nature is conducted by experienced technological staff. Employees in positions of this nature would normally be allocated to the Technician 3 level. Supervisory responsibility may be a function of some positions at the Technician 3 level. Both demonstrated supervisory and specialist technological abilities play an important part in allocations to the Technician 4 and 5 levels. In most cases the allocation of positions to the Technician 5 level is due solely to a lack of qualified scientific staff. EXCLUSIONS FROM THESE CLASS SERIES 1. 2. 3. Laboratory positions, filled by fully qualified personnel, involving the interpretation of analytical test results which require a professional knowledge of the work area. Such positions would be allocated to the Scientist, Research Scientist, Physician or other professional,class series. Laboratory positions involving non-skilled staff performing non-technical tasks. Such positions would be allocated to Laboratory Attendant, Caretaker, Labourer or other classes depending on the duties performed. Laboratory positions involved with the determination of the strength, durability, composition, resistence, etc. of materials or equipment by visual examination and standard test procedures. Such positions would be allocated to the Technician, Physical Laboratory class series. DESIGNATION OF DEPARTMENT OF HEALTH. ERALTE LABORATORIES 1. Class "A" Laboratory - a regional laboratory processing over 500,000 units, specimens and examinations per annum. 2. Class "B" Laboratory - a regional laboratory processing over 250,000 but less than 500,000 units, specimens and examinations per annum. . 11 3. Class "C" Laboratory - a regional laboratory processing less than 250,000 units, specimens ana examinations per annum. TECRNICIAN 2, CHEMICAL LABORATORY CLASS DEFINITION: Employees in position allocated to this class conduct a variety of common tests and procedures, under supervision, with responsibility for the accuracy of techniques and the reliability of results. In addition they may assist more senior technicians or scientists in conducting a variety of complex tests and in technical demonstrations for trainee technicians. They conduct a variety of common tests and procedures such as: - the extraction of silver by fusion methods: the extraction of gold by acid method; determination of mineral and pigment content in paints; alcohol and nitrogen freezing of semen; the preparation of samples of tocopheral extractions for analysis by chromatographic methods; determining.the water absorbency of paints; theobarbituric acid test for fatty acid peroxides; so,lvent fractionation: the preparation of samples for the quantitative determination of enzyme activity; the determination of energy or chromic oxide content in feedstuffs; the determination of specific gravity and absorption of fine and course aggregates; measurement of free silica in samples by chemical means; the measurement of radium in water by Radon de-emanation method and alpha counting, etc. They may assist senior personnel, technical or scientific, in the performance of complex tests following laid down procedure or verbal instruction. The.level of the tests -and procedures in which they assist are exemplified by the following; testing acids by filtration and paper chromatography; chemical analysis of meat to determine content * of moisture, fat, protein, and acidity; preparation of electrodes containing materials for spectrographic analysis; observing and recording bio-chemical reactions in inoculated media; nitrogen determination by kjeldhal techniques; etc. Under general supervision they clean and set up laboratory equipment and prepare specimens, reagents, plates, tubes, etc., for common laboratory tests. They keep detailed records of results of tests, noting variations from expected results. They assist in the training of trainee technicians and other laboratory staff and may supervise a small number of subordinates performing common tests on a production basis. 12 They maintain the cleanliness of their work area and perform other duties as may be assigned. QUALIFICATIONS: 1. Junior Matriculation, including Grade 12 courses in mathematics and science and a minimum of four years' experience in laboratory work, An acceptable combination of education, practical experience and self teaching recognized by Civil Service Commission as being the equivalent. 2. Alertness; keen powers of observation; skill and care in the operation of .laboratory equipment; accuracy; integrity; neatness: ability to work co-operatively with other staff; good judgment. At the hearing, the classification sought together with the Preamble reads: TECHNOLOGIST 1-3. MEDICAL LABORATORY The Technologist, Medical Laboratory series covers positions of employees who provide a range of technical services to the pr,ofessions of medicine, veterinary and forensic science as an aid to diagnosis and treatment of disease, as a check on conditions affecting public health, in support of forensic investigations, or in support of medical/scientific research. Work is performed in provincial hospitals and institutions, Public Health laboratories, veterinary laboratories and forensic facilities. Medical Laboratory Technologists are primarily responsible for conducting a variety of tests, analyses, examinations and other laboratory procedures, ranging in complexity from moderate to specialised, by using microbiological, ,culture, chemical and/or related techniques. Responsibilities for laboratory procedures typically include: collecting specimens from patients/animals/ cadavers; operating and maintaining laboratory equipment and _. .~ . . .- 13 apparatus, including photographic materials where indicated; recording activities, test results or observations, and preparing reports; examining a wide variety of items of physical evidence to identify and locate significant areas, items, points; teaching or demonstrating laboratory techniques to other technicians; participating~ in research/experimental programs or in new method development: using and monitoring quality control programs; maintaining cleanliness and sterility in the workplace. Technologists in forensic facility are required to work within the requirements of examination or continuity of evidence, security and identification as imposed by the Courts and the Rules of Evidence; they mav be required to testify in court to prove continuity of evidence and to describe the methods and procedures used. Veterinary Laboratory Technologists also mav be resuired to testify in court to prove continuity of evidence and to describe methods and procedures .used, e.g. in insurance and forensic cases where animals are burned, poisoned. Allocation Factors: The allocation of positions to the three levels is based on evaluation of the following compensable factors: Skills and Xnowledse The following criteria are used to differentiate levels: the depth of knowledge of medical, biological, forensic and/or veterinary laboratory tests, procedures and principles; the level of dexterity required in the manual manipulation of tissues, organisms, reagents; instrumentation, etc.; the variety and complexity of instruments operated and related skills required;. group leadership skills. The following criteria are used to differentiate levels: the extent of supervision and technical direction received; 14 the degree to which test results are/are not self- evident and requiring of interpretation; the selection of alternatives/number of decision points within a procedure; the degree to which test reliability can be confirmed by control comparison; the extent to which established guidelines, procedural instructions and precedents are available to aid decision-making. Accountability The following criteria are used to differentiate levels: Responsibility for: technical operations carried out - quality, accuracy, formal signing authority; handlinq pathogenic/toxic substances; group leadership; meeting the requirements of continuity of evidence, identification; testifying in Levels: There are three levels of work within follows: Technoloaist 1, Medical Laboratory examination or security and court. the series, as Working level positions conducting standardized, well- established, moderately complex laboratory tests and procedures, for more than 50% of the time. Technoloqist 2. Medical Laboratory Senior working level positions conducting complex laboratory tests and procedures having a network of interdependent steps and variables for at least 50% of the time; and/or group leaders responsible for a small laboratory or section of a large laboratory where moderately complex tests are carried out. Technoloaist 3. Medical Laboratory Specialist level positions conducting advanced/ specialized laboratory tests and procedures with many sources of variation and error in multiple stages for more than 50% of the time. Note: Not all of the allocation factor elements 15 apply to each individual test carried out at a given level; however, the elements must be present in the strength described across the full range of work performed at a level, for the indicated percentage of time. Definition of Terms: Moderatelv coniolex tests/procedures: test results are self-evident; a limited number of decisions in the selection of alternative procedures are required; the reliability of the test can be validated by controls; tests/procedures have been standardized to the extent where most or all aberrations have previously been identified. Comnlex tests/procedures: a variety of alternative results are usually considered to arrive at the final result; a variety of decisions regarding the selection of al-ternative procedures are required to solve unanticipated problems: the reliability of the test can only be partially validated by the use of controls, requiring some assessment within established criteria; test/procedures have general guidelines and precedents available but have not been standardized to the extent where most/all aberrations have previously been identified. Advanced snecialized tests/orocedures: test results are not clear or well-defined; the number or combination of subsequent steps to be taken, based on results of preceding steps, must be determined; tests and procedures are not amenable to the routine use of controls; test reliability is assessed by applying general technical principles; tests are not standardized, have few or no precedents available and often require modification/adaptation. TECRROLOGIST 3. MEDICAL LABORATORY This class covers employees in specialist level positions conducting advanced/specialized laboratory tests and 16 procedures; they may also provide group leadership to working and senior working level technologists, as assigned. Advanced/specialized tests are carried out more than 50% of the time, i.e. the following allocation factor criteria must apply to more than 50% of the work carried out. Skills and Knowledoe: extensive knowledge of laboratory tests, procedures and practices to carry out specialized work with many sources of variation and error in multiple stages and to develop/modify procedures where no appropriate ones exist; knowledge of the requirements of examination and continuity of evidence, security and identification plus skills related to testifying in court as required, to prove continuity of evidence (applicable to positions in a forensic facility or veterinary laboratory); highly developed dexterity skills to perform a series of exacting and delicate manipulations on laboratory equipment/instruments, each of which could significantly affect test results, e.g. mass spectrometry, column chromatography; well-developed technical skills to operate and' ' maintain advanced experimental or highly variable instrumentation/equipment, e.g. mass spectrograph; group leadership skills to co-ordinate complex work assignments of assigned staff and provide technical guidance in conducting complex and specialized tests and procedures. Judaement: employees work under general supervision of medical/professional scientific staff; minimal technical direction is required; test results are not clear or well defined; considerable judgement must be exercised in making determinations, e.g. differentiating the individual members, of a group/family of organisms which characteristics may be grossly overlapping; differentiating normal cytogenetic variants from aberrations with adverse health consequences; judgement is exercised in determining the number or combination of subsequent steps to be taken based on the results of the preceding procedure, to reach 17 a final result; tests and procedures at this level are not amenable to the routine use of controls, e.g. microscopic identification of rare and unusual parasites; significant judgement is exercised in assessing the reliability of test results by applying general technical principles; - tests are usually not standardized, have few or no precedents available for reference, and often require adaptation/modification to resolve unusual problems and obtain optimal results. Accountabilitv: employees are accountable for the accuracy and reliability of the advanced/specialized tests and procedures used, where applicable, for quality control of laboratory products produced and/or purchased for use throughout the major laboratory system, e.g. production of antisera for serotyping; for evaluating and improving testing; employees in these positions are required to handle class 4 organisms (as defined bye Health and Welfare Canada with respect to level of pathogenicity) and highly toxic substances, e.g. botulinus toxin, rabies; where assigned, employees provide training to subordinate staff in carrying out advanced and specialized procedures, and provide technical supervision to assigned staff on a regular or project basis, including accountability for the quality of work generated by them; employees in a forensic facility or veterinary laboratory are accountable for meeting the requirements of examination or continuity of evidence, security and identification, as imposed by the courts and Rules of Evidence, and are required to testify in court to prove continuity of evidence and describe methods and procedures used. TECHNOLOGIST 2. MEDICAL LABORATORY This class covers employees in senior working level positions conducting complex laboratory tests and procedures having a network of interdependent steps and variables, for at least 50% of the time, i.e. the following allocation criteria must 18 app:Ly to at least 50% of the work carried out; m group leaders responsible for a small laboratory or section of a large laboratory where moderately complex tests are carried out; x a combination of both roles. Skills and Knowledaet sound knowledge of laboratory tests, procedures and principles to perform complex tests having a network of interdependent steps and variables; knowledge of the requirements of examination and continuity of evidence, security and identification (applicable to positions in a forensic setting or veterinary laboratory); well-developed manual dexterity skills to carry out manipulations of tests/equipment necessary to obtain required results, e.g. injection of animals, electron microscopy: technical skills to operate and maintain sophisticated equipment/instruments, e.g. gas liquid chromatographs, electron microscopes, computerized equipment;, and/or group leadership skills to co-ordinate work assignments of others and provide technical guidance to assigned staff performing moderately complex tests and procedures (Note: full-time wow leaders possess technical skills and knowledge described in level 1 plus these requisite group leadership skills). Judaement: employees normally work under general supervision of senior technical and/or scientific staff and may seek technical direction from more senior staff on highly unusual results; variety of alternative results are usually zonsidered to arrive at the final result, e.g. identification and quantification. of drugs from blood and urine; a variety of decisions regarding the selection of alternatives to standard procedures are required to resolved unanticipated problems; the reliability of a test can only be partially validated by a control, e.g. complement fixation test; some judgement is exercised in assessing the reliability of test results within established criteria: tests/procedures performed at this level have general guidelines and precedents available 'for reference but they have not been standardized to the extent that most or all aberrations have previously been identified; and/or as group leaders, judgement is required to provide technical guidance in resolving testing problems, in reviewing reports for completeness and in ordering further testing as needed. Accountability: employees are accountable for the accuracy and reliability of complex tests and procedures, for ensuring that proper techniques are utilized and that work output meets established standards; employees are required to handle class 2 and 3 organisms (as defined by.Heal‘th and Wel'fare Canada with respect to level of pathogenicity) and moderately toxic substances, e.g. staphyloccal enterotoxin equine encephalitis, psittacosis; employees in a forensic facility and veterinary laboratory are accountable for meeting the requirements of examination or continuity of evidence, security and identification as imposed by the Courts and Rules of Evidence, and may be required to testify in court to prove continuity of evidence and describe methods/procedures used; and/or as group leaders, employees are accountable for ensuring that all work of assigned staff meets accuracy and reliability requirements, and for providing training in complex testing procedures. Scientist Bill Lachowsky testified on behalf of the Union. He commenced work at C.M.T.L. in May 1984 and was then classified as 20 a chemical technician. Subsequently, he became a Scientist after obtaining a Bachelor of Science Degree (Honours) in Microbiology at the University of Guelph. His duties include the supervision of all procedures in both the Microbiological Control Lab and the Electronic Quality Testing Lab and providing assistance to technicians. Mr. Lachowsky testified that the grievor works with "living organisms" on a daily basis and that microbiology is the study and isolation of "micro" living organisms. He explained that the Chemical Control Lab does not deal with living organisms but rather with chemical compounds. Mr. Lachowsky confirmed that the grievor's job, at least in '1987, was "fairly unique" and that she was a competent employee who for the most part worked autonomousiy. According to his evidence, the grievor devotes the majority of working hours to antibiotic testing and that accurate microbiological test results, as recorded by the grievor, are essential to the Milk Marketing Board for penalty assessment purposes. Mr. Lachowsky confirmed that the grievor is required to use judgment in interpreting test results and that the preparation of slides for somatic cell standards is "finicky" work. Two witnesses testified on behalf of the Employer - C.M.T.L. Laboratory Supervisor Fred Fletcher and Dr. Jim Henry, currently Director of Veterinary Laboratory Services for the Ministry. Mr. Fletcher is an economist by background (University of Guelph) and 21 until April 1, 1991 had been C.M.T.L. Laboratory Supervisor for 24 years. Apparently Mr. Fletcher is now on special assignment. Although not a microbiologist, he was instrumental in establishing microbiological testing of milk at C.M.T.L. in 1985 based on his observations and'on the experience of the Scottish Milk Marketing Board. Mr. Fletcher maintains that C.M.T.L. is required to deal on .lY with producers milk at the farm gate and accordingly has no.direct mandate for public health. He stressed the fact that Health and Welfare Canada has the authority to withdraw products from the marketplace and that C.M.T.L. has no such authority. Mr. Fletcher reviewed each of the tests performed by the grievor and concluded that none of the tests were complex, but that in his opinion the direct microscopic somatic cell count was a "finicky" process. He stressed the fact that the tests were not new and that the direct microscopic somatic~ cell count was developed in 1913, the test for micro organisms (standard plate count) appeared at the turn of the century and that inhibitor testing started with the discovery of penicillin in the mid-1940's. The thrust of Mr: Fletcher's evidence was to the effect that all tests performed by the grievor were "well prescribed" in the "Standard Methods"~ Text and the C.M.T.L. Operations Manual. He acknowledged, however, that accuracy and consistency in testing procedures were essential. In cross-examination, Mr. Fletcher -\ 22 . I confirmed that all C.M.T.L. technicians were classified initially as Medic:al Technicians until 1974 when they were reclassified as Chemical Technicians. In addition, he confirmed that the INOFOSS, the FOSSOMATIC and the PETRIFOSS instruments were not in use at C.M.T.L. when the Chemical Laboratory Class Standards were established in 1965. Similarly, in cross-examination, he acknowledged that the grievor performed none of the tasks referred to in paragraphs 2 and 3 of the grievor's current Class Standard. Dr. Jim Henry described the purpose and structure of the Central Veterinary Laboratory at Guelph. The Guelph Lab provides a diagnostic service to veterinarians and the livestock industry. Dr. Henry explained that the Guelph Lab provides the same service as a hospital pathology department would for humans and'offers services in microbiology including bacteriology, virology and serology. The Guelph Veterinary Lab employs 15 veterinarians and numerous technicians classified as either Technologist 1 or 2, Medical Laboratory. The Guelph facility is divided into sections which specialize in various disciplines, i.e. diagnostic bacteriology section, mastitis section, serology section and virology section. Dr. Henry described the type of tests performed at the Guelph Veterinary Laboratory using the old Class Standards for Technicians 2 and 3, Medical Laboratory and characterised each of those tests as biological or chemical in nature. In cross- examination, Dr. Henry reviewed the grievor's Position Specification form together with the current Class Standard of L.5 Technician 2, Chemical Laboratory. On the basis of that documentation, he agreed that there was a strong biological aspect to the grievor's job and a strong chemical aspect to the grievor's current classification. In re-examination,, Dr. Henry agreed that some technologists at the Veterinary College are performing strictly biological tests, while others perform strictly chemical tests and others perform a mix of both. The Union contends that the core duties of the grievor's job do not fit within the current Class Standard of Technician 2, Chemical Laboratory. Mr. Watson argues that although the health mandate of C.M.T.L. has not~been reduced to writing, there is a strong health component to the work performed. He contends that the .grieiror would. be properly classified within the new Medical Laboratory Series at either the Technologist 3 or 2 level (preferably Technologist 3) to properly reflect the micro- biological nature.of the grievor's duties and responsibilities. AS a last resort, the Union suggests a Berry order. In support, we were referred to the following authorities: OPSEU (Swibb~et al) and Ministrv of TransDortation 1107/87, 2036/87, 0186/88 (Watters); OPSEU (Jameson, Leblanc. Smith) and Ministrv of Agriculture and Food 390/87, 391/87, 429/87 (Verity); OPSEU (Beoos et al) and Ministry of Agriculture and Food 453/88, 492/88, 493/88, 494/88,' 512/88, 513/88 (Wilson); OPSEU (Ennis. Schuler). and Ministry of Correctional Services 17/85, 1396/88A (Kirkwood); OPSEU (Zinger et al) and Ministrv of Correctional Services 0004/85 (Brent); and . 24 OPSEU (Braund et al) and Ministrv of Correctional Services 39/89 (Slone). The Employer maintains that the grievor was properly classified both at the time of the grievance on the basis that she performs bacteriological tasks in a chemical laboratory. Mr. Slater argues that while C.M.T.L. has a concern for health, the mandate for public health is elsewhere and that C.M.T.L. is involved in quality control work and is not involved in medical diagnosis and has no public health mandate. The Employer contends that the Class Standard Technician 2, Chemical Laboratory is extremely broad and that the tests described are not meant to be definitive. Mr. Slater adopts the position that there was no evidence that the grievor performs significant duties which fell outside the Class Standard and that a Berry order should be granted only as a last resort. The Employer referred us to two decision: QPSEU (Palmer et al) and Ministry of Revenue 2017/86 (McCamus); and OPSEU (Samir Messieha) and Ministrv of Environment 0387/86 (Springate). There is really no dispute between the parties as to the nature of the grievor's actual duties and responsibilities. Similarly, there is no dispute that she is a competent and dedicated employee. It may fairly be said that her position is unique at C.M.T.L. in the sense that she is the only Microbiological Control Technician. On the evidence, we find that 25 she performs a multiplicity of primarily microbiological tests in which she is required to interpret and record those tests results. Indeed, the results obtained from .the microbiological laboratory are forwarded to the Ontario Milk Marketing Board for the purpose of imposing penalties under the Regulations to the Ontario Milk Act. We ,agree that the Chemical Laboratory Technician Class Standard dated July 1965 is designed to apply to a wide variety of positions. However, the evidence of Mr. Fletcher established that the grievor's current duties as a Microbiological Control Technician differ significantly from the tasks described in the current Class Standard. Similarly, Dr. Henry acknowledged that there is a strong biological aspect described in the grievor's Position Specification form and a strong chemical aspect contemplated by the current Class Standard. C.M.T.L. is a large multi-purpose facility containing both a chemical laboratory and microbiological laboratory. On all the evidence, we find that the grievor's primary focus on microbiological testing duties is not reflected in the Technician 2, Chemical Laboratory Class Standard, and that accordingly we must conclude that she is misclassif ied. However, on the evidence adduced, we are not persuaded that the grievor is entitled to reclassification in the Medical Laboratory Class Series. Mrs. Jirsa does not provide technical services "to the professions of medicine, veterinary and forensic 26 science as an aid to diagnosis and treatment of disease" as contemplated by the preamble to the Technologist 1-3, Medical Laboratory Class Series. The nature and purpose of C.M.T.L. is to test raw milk for composition and quality control to ensure compliance with the Ontario Milk Act and the Regulations thereto. While there are obvious health concerns in the multiplicity of tests performed at C.M.T.L., that facility is not involved in the diagnosis and treatment of disease and has no direct public health mandate. In the result, this grievance is allowed and the Employer is directed to find or create a proper classification for Mrs. Jirsa within 90 days of the release of this Decision. Further, the grievor is entitled to,compensation for any.difference between.the two classifications for the period commencing 20 days prior to the filing of the grievance and the effective date of reclassification. This Panel shall remain seized in the event of any difficulty encountered in the implementation of this Decision. DATED at Brantford, Ontario, this 9th day of January. 1992. R. L, VERITY, Q.C. - ~cE-CHA~RPE;(SON . . . . . . . . . . . . . . . . . . . . . . . . . . . . SIN1 - MEMBER