HomeMy WebLinkAbout1990-2045.Zurawski.91-12-02 DecisionEMPLOY& DE LA COURONNE DE L'ONTARIO
commission DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 1z8
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1z8
(4 16) 326- 1388
: (4 16) 326- 1396
2045/90
BETWEEN
BEFORE :
FOR THE
GRIEVOR
FOR THE
EMPLOYER
IN the MATTER OF AN ARBITRATION
under
TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Zurawski)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Health)
Employer
R. Verity
I. Thomson
D. Montrose
Vice-Chairperson
Member
Member
K. Whitaker
Counsel
Ryder, Whitaker, Wright & Chapman
Barristers Solicitors
G. Karayannides
Counsel
Genest Murray
Barristers & Solicitors
HEARING April 8, 1991
July 24, 26, 1991
2
DECISION
Andy Zurawski works as Sewage Plant Operator at the
Penetanguishene Mental Health Centre and is classified as Waste and
Water Project Operator 1. In a grievance dated June 11, 1990, he
claims that he is currently misclassified and seeks
reclassification under a Berry type Order.
The grievor has worked at the Mental Health Centre since
February, 1984 and in his current position since February of 1987.
He is the sole operator of the Waste Water Treatment Plant (a
conventional activated sewage facility) which is located
approximately 1/2 kilometre from the main institution The purpose
of the plant is to treat sewage water generated by the Institution
in order to discharge a final effluent, free of contaminants, into
Georgian Bay. The plant is a Class II facility under the Ministry
of Environment certification program and the grievor holds a Class
II Waste Water Treatment Certificate issued by that Ministry in
1990. The plant is part of the Institution's Plant Service and
Maintenance Department. The grievor reports
to Plumbing Foreperson
Lawrence Gregoire, a licenced plumber. Mr. Gregoire supervises a
staff of seven - two plumbers, three maintenance mechanics, one
preventive maintenance mechanic and the grievor.
After the grievance was filed, a job audit was prepared by
Personnel Officer Richard Whiting. The job audit resulted in the
3
preparation of a new Position Specification form dated August 26,
1990 (effective June 1, 1990) which reads, in material parts, as
follows:
2. Purpose of position'
To maintain the daily operation of the facility's second-
class activated sludge and sewage treatment plant and to
assist other Plant Services staff in performing
maintenance and general repairs across the Mental Health
Centre.
3. Duties and related tasks
1. Maintains the daily operation of the sewage treatment
plant by: - Checking and recording all meter, and temperature
gauges as well as flow chart readings on influent,
effluent and waste levels; - Checking the operation of all electrical and
mechanical equipment such as control panels, pumps
and valves to see that they are functioning within
prescribed parameters indicating proper operation;
performs immediate maintenance required to correct
malfunctions; - Performing the prescribed tests of samples from
treatment tanks as required by the Ministry of the
60% Environment; - Calculating and recording the monthly Sludge Volume
Index; - Regulating the chlorinator to maintain a proper
chlorine residual in the effluent, recording the
amount of chlorine used; - Checking that the digester is functional,
unobstructed by sand or other debris, cleaning same
on scheduled maintenance; checking and cleaning the
aeration, settling and final effluent tanks as
required;
Cleaning the drying beds as required; - Measuring and recording the amount of sludge
removed; - Requesting chemicals and equipment necessary for
plant operations from the Plumbing Foreperson. - Performing general maintenance and housekeeping
chores in the plant and around the grounds.
2. Assists other Plant Services staff with repairs and
4
maintenance of mechanical equipment throughout the
hospital by:
- Making simple repairs to plumbing and heating
equipment, for example, unplugging a toilet; - Helping plumbers and mechanics install or repair
grill-gate doors at Oak Ridge;
Checking the chemical inhibitors across the site as
part of the department's preventative maintenance
programme ; - Keeping a log of pump and plant maintenance
performed at the Sewage Treatment Plant, e.g.
schedule of plump oiling; - Making repairs to water softening equipment and
ensuring the softeners have sufficient level of
salt; Note: This involves handling 20Kg. bags of
salt -
20% - Helping electricians remove and install motors; -
3. Performs testing and treatment of the facility's water
supply;
- Performing the pH test each scheduled day on the
facility water supply; - Collecting water samples as scheduled and
forwarding to the Orillia Public Health Laboratory;
10% - Checking water softeners as scheduled to see that
they are running properly; regenerating the
softeners by running them through a cycle and
backwashing, introducing new brine to the system.
4. Performs related duties such as;
- Advising supervisor of equipment malfunctions and
material needs; - Performs the monthly diesel engine test on the
water circulation pump located at the
Administration Building;
10% - Assists with fire hydrant flushing as required; - as assigned.
4. Skills and knowledge required to perform job at full
working level.
Possession of a Second-class Waste-Water Utility
Operator's certificate issued by the Ministry of the
Environment under the Water Resources Act. Awareness of
safe handling of chemicals such as chlorine and alum.
Physical capability to lift supplies up to 20 kilograms
and shovel drying beds. Experience in the mechanical and
electrical trades to assist tradespersons. Valid Ontario
driver's licence.
5
The grievor testified at length as to his actual duties and
the nature of the operation of a conventional activated sewage
plant. He agreed that he performed most but not all of the duties
set out in the revised Position Specification form. In particular,
he described a variety of tests that he performs on a daily basis
on sewage samples at various stages of treatment, and the need to
interpret and log the test results. According to his evidence, the
tests performed are for his information. In addition, he is
required to send monthly sewage samples for independent testing to
the Ministry of the Environment and to comprehend the significance
of the Ministry's written test results. The grievor maintains that
75-80% (as opposed to 60%) of his job involves duty #1 (the daily
operation of the sewage treatment plant) and 5% of the job (as
opposed to 20%) in duty #2 (assisting other plant services staff).
The grievor testified that -although he has a good relationship with
Mr. Gregoire, the Supervisor visited the plant only twice in the
last three years. According to the grievor's evidence, he was
never given technical advice by his Supervisor, the Supervisor was
unfamiliar with the tests performed, and the Supervisor did not
review his work or the test results received from the Ministry.
The grievor's unchallenged evidence was that on one occasion
Mr. Gregoire had told the grievor: "I haven't the foggiest idea
what you do down there". The grievor also stated that when he was
hired by Mr. Gregoire's predecessor, he was told words to the
effect: "it
is your baby and that anything that goes wrong is your
6
responsibility". In November, 1989, the grievor attended an
activated sludge course and as a result instituted further testing
procedures and obtained permission for the purchase of new
equipment.
\
Lawrence Gregoire testified that he has ongoing daily
responsibility for the maintenance of plumbing and heating
throughout the Institution. He frankly acknowledged that he was
not capable of running the sewage treatment plant himself. He
does, however, have signing authority to authorize the purchase of
parts, equipment and supplies for the sewage treatment plant and
authority to provide manpower upon request. Mr. Gregoire admitted
that he had very little knowledge of the various tests performed by
the grievor. However, he was actively involved in the preparation
of the job audit.
Personnel Officer Richard Whiting prepared the job audit and
concluded that the grievor was currently properly classified. He
acknowledged that the audit was prepared in consultation with
Supervisor Gregoire and based primarily on prior Position
Specification forms. He did interview the grievor for some ten to
fifteen minutes and toured the sewage treatment plant. The grievor
was allowed to review the completed job audit and was asked for his
written comments. It would appear that the grievor's suggestions
were ignored for the most part.
7
The current Class Standard with accompanying Preamble reads as
follows
WASTE AND WATER PROJECT OPERATOR SERIES
This series covers positions of employees engaged in the
operation of either waste treatment or water purification
facilities. These employees carry out a variety of duties
related to the monitoring and control of waste and water
treatment processes in installations located throughout the
Province.
The size of the facility ranges from projects serving
small municipalities and requiring only one or two employees,
to installations serving densely populated areas with a
relatively large and diversified staff operating on a
continuous shift system.
The responsibilities of these positions involves the
carrying out of regular inspections of the project, operating
and maintaining process control equipment and undertaking
various assignments to ensure that the project is operating in
accordance with established standards. The series contains a
trainee level covering positions of employees lacking the
necessary knowledge and/or experience to operate at the full
working level.
Excluded from this series are positions where the primary
responsibility is the repair and maintenance of plant
equipment, the conducting of laboratory tests, groundskeeping,
caretaking and unskilled manual labour. Such positions should
be allocated to class series more specifically designed to
cover their responsibilities.
Also excluded from this series are positions of Chief
Operator (no more than one per plant for each shift) and
higher level positions concerned chiefly with the management
of the plant.
WASTE AND WATER PROJECT OPERATOR 1
This class covers positions of employees who, under the
supervision
of a Chief Operator, carry out a variety of
operating and inspectional duties in either a waste treatment
or a water purification facility.
8
These employees carry out regularly scheduled inspections
of all equipment in buildings, collect samples and perform
routine laboratory tests, in order to ensure the effective
operation of the facility. They perform preventive maintenance procedures by checking machinery and electrical
equipment when required, and may overhaul or assist in the
overhaul of equipment if necessary.
In some plants these employees may also be required to
perform some groundskeeping and caretaking duties-
SKILLS AND KNOWLEDGE
Mechanical and electrical aptitude; familiarity with and
understanding of the operation of a variety of moderately
complex process control equipment.
Reference was made by the Union to Waste and Water Project
Supervisor Series to give meaning to the term "Chief Operator".
That Class Standard, deleted in 1981 and not replaced, reads as
follows:.
Preamble
WASTE AND WATER PROJECT SUPERVISOR SERIES
This series covers employees engaged in the management of
water and waste treatment projects in municipalities
throughout the Province.
DEFINITION OF TERMS
Project
A project is a water treatment and distribution or waste
collection and treatment facility or group of facilities which
constitutes an organizational unit for administrative
purposes. Projects range in size from small facilities
requiring only one or two full time employees to major
installations employing a large diversified staff.
Project Superviosr
A Project Supervisor is the employee who reports to a
Regional or Head Office position and is accountable for all
9
aspects of the administration and operation of a project.
Chief Operator
A Chief Operator is an employee who reports to a Project
Supervisor, and who has significant supervisory
responsibilities in respect of the operation of a project or
segment of a project.
There are six levels in the series, and allocation of a
position to the appropriate level is governed by the degree of
responsibility assigned. To simplify the evaluation of the
degree of responsibility of positions, six classifications of
project have been determined based on the following four
factors:
1. Design Flow: This is the capacity of the project
expressed in gallons per day.
2. Complexity of Equipment: This is an assessment of
the overall complexity of equipment and process
used in the project, which can range from simple
primary treatment processes to relatively
sophisticated installations employing automated
control systems.
3. Operations Budget: The annual expenditure
associated with the operation of the project.
4. Number of Staff Supervised: The total number of
staff reporting directly or indirectly to the
position.
The allocation of positions of Project Supervisors to the
appropriate level in the series is determined by reference to
the project class designations, which are detailed under the
following Project Classification Index.
Positions of Chief Operators are few in number and tend
to exist only in the large projects. The overall responsibilities of these positions should be measured against
the responsibilities characteristic of the first four
classifications of project, and allocated accordingly.
Any subsequent change in the classification of a project
must be supported by a significant quantitative change in one
or more of the four factors listed above.
Excluded from this series are supervisory positions
responsible for a segment of a project, which does not include
the supervision of operators.
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WASTE AND WATER PROJECT SUPERVISOR 1
This level covers Project Supervisors who are accountable
for all aspects of the administration of a Class 1 project and
Chief Operators with equivalent responsibilities. (See
Preamble for Definitions)
WASTE AND WATER PROJECT SU PERVISOR 2
This level covers Project Supervisors who are accountable
for all aspects of the administration of a Class 2 project and
Chief Operators with equivalent responsibilities. (See
Preamble for Definitions)
WASTE AND WATER PROJECT SUPERVISOR 3
This level covers Project Supervisors who are accountable
for all aspects of the administration of a Class 3 project and
Chief Operators with equivalent responsibilities. (See
Preamble for Definitions)
WASTE AND WATER PROJECT SUPERVISOR 4
This level covers Project Supervisors who are accountable
for all aspects of the administration of a Class 4 project and
Chief Operators with equivalent responsibilities. ( See
Preamble for Definitions)
WASTE AND WATER PROJECT SUPERVISOR 5
This level covers Project Supervisors who are accountable
for all aspects
of the administration of a Class 5 project.
(See Preamble for Definitions)
WASTE AND WATER PROJECT SUPERVISOR 6
This level covers Project Supervisors who are accountable
for all aspects of the administration of a Class 6 project.
(See Preamble for Definitions)
The real dispute in this case focuses on the level of
supervision given the grievor by Mr. Gregoire. The Union maintains
11
that the grievor works virtually autonomously and that Mr. Gregoire
does not perform the function of "Chief Operator" as contained in
the current Class Standard. The Employer recognizes the concern
and asked the panel to read out of the Class .Standard the reference
to "Chief Operator" or alternatively, to find that Mr. Gregoire
filled that role.
The Union requested the panel to have regard to the definition
of "Chief Operator" in the deleted Class Standard to determine the
nature of the supervision contemplated in the grievor's current
Class Standard. Mr. Whitaker contends that "Chief Operator" is
someone with technical expertise who is significantly involved in
the actual operation of the plant with the requisite skill and
ability to operate that facility. He argued that, on the evidence,
Mr. Gregoire does not fit the description of Chief Operator.
Further, he argued that Mr. Gregoire does not exercise significant
supervisory responsibilities of a technical nature in the operation
of the plant.
The Employer maintained that the grievor is currently properly
classified on a reading of both the Preamble and Class Standard.
Mr. Karayannides argued that with the exception of the phrase
"under the supervision of a Chief Operator", the grievor admitted
that he carried out all of the duties as encompassed in the current
Class Standard. On that basis, Mr. Karayannides contends that the
Chief Operator provision should be read out of the Class Standard
12
or that Mr. Gregoire as the grievor's Supervisor filled that role.
In classification matters, on the Class Standards approach,
the grievor's actual duties and responsibilities must be measured
against that standard. If those duties are found to fit within the
general language of the standard, the matter is concluded. The
nature of the Class Standards are such that they are by definition
general and designed to apply to a number of different jobs. The
Class Standard must be read with the grievor's particular job in
mind and it would be inappropriate to read out any part of that
Standard.
There is no dispute that the grievor's job has not changed in
any material respect throughout his tenure. Similarly, Mr.
Gregoire is and remains the grievor's Supervisor.
The Class Standard for Waste and Water Project Operator 1
specifies that employees work "under the supervision of a Chief
Operator". The Preamble to the Class Standard makes it clear that
positions of "Chief Operator" are excluded from this series.
To
give meaning to the phrase "Chief Operator" it is appropriate, we
think, to refer to the Waste and Water Project Supervisor series
which bears the same date (July 1, 1973) and which also deals with
Waste Water Projects. In the Preamble to that particular Class
Standard, "Chief Operator'' is defined as "an employee who reports
to a Project Supervisor and who has significant supervisory
13
responsibilities in respect of the operation of a project or
segment of a project". A project is defined as "a water treatment
and distribution or waste collection and treatment facility". We
would agree with the Union that "Chief Operator", as defined,
contemplates an employee with the technical expertise and the
requisite skill and ability to operate the plant. Although the
Waste and Water Project Supervisor series was discontinued in 1981,
there was no corresponding amendment to the grievor's current Class
Standard.
On the evidence before us, we are satisfied that Mr. Gregoire
is not a Chief Operator. Simply stated, he does not exercise
significant supervisory responsibilities of a technical nature in
the operation of the Sewage Treatment Plant. That is
understandable in view of Mr. Gregoire's training as a Journeyman
Plumber with primary responsibility for the maintenance of plumbing
and heating throughout the Institution. Mr. Gregoire was frank to
admit that he was not capable of running the Plant and that he was
unfamiliar with the various tests performed by the grievor.
Similarly, the evidence established that Mr. Gregoire was also
unfamiliar with the required standards of the Ministry test
results.
We are satisfied the grievor is currently misclassified. The
grievor's actual duties and responsibilities are performed
virtually without supervision. Accordingly, it cannot be said that
14
the current Class Standard accurately reflects the grievor's actual
duties and responsibilities. In effect, the grievor operates and
co-ordinates the management of the Waste Water Treatment Facility.
He is the only employee operating the facility, monitoring quality
control, performing various tests, interpreting the results of
those tests, and determining what action is to be taken to alter
the operation to ensure quality control objectives.
This is the appropriate case for a Berry type Order. In the
result, we order the Ministry to re-evaluate the position held by
Mr. Zurawski and to assign the position to an appropriate
classification and compensation level, within 90 days. The grievor
shall be entitled to full compensation arising from this
reclassification effective twenty days prior to the filing
of the
grievance. We shall remain seized pending the implementation of
this Decision.
DATED at Brantford, Ontario, this 2nd day of December, 1991
...... ......... R. L. VERITY, Q.C. - VICE CHAIRPERSON
................ I. THOMSON - MEMBER
.... D. MONTROSE - MEMBER