Loading...
HomeMy WebLinkAbout1989-1874.Singh.91-12-17 ONTARIO EMRL O YES DE LA COURONNE CROWN EMPLOYEES DE L 'ON TARtO GRIEVANCE C,OMMISSiON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG ~Z~ TELEPHONE~WELL'PHONE.. (476.; 326-~388 180, RUE DUNDAS OUEST. BUREAU 2;,00, TORONTO (ONTARiO.I. MSG 1ZB FACSIMILE/T~L~COPJE : (4~6) 326- r396 1874/89~= IN THE ~TTER OF ~ Under THE CRO~N F~PLOYEEB COLLECTIVE BARGAINING ACTi Before THE GRIEV~NCE SETTLEME~ BO~RD BETWEEN 0PSEU (Singh) Grlevor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORe,: D. Kates Vice-Chairperson M. Vorster Member , A. Stapleton Member FOR TH~ R. Healey GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR T~E M. Failes EMPLOYER Counsel .. Winkler, Filion & Wakely Barristers & Solicitors HEARING October 31, 1990 - 1 - Decision The griever ts employed as a Vehicle Emi. ss joss Technician, MOT, and is classified as a Technician 3, Chemical Laboratory. Mr. Singh seeks rec]asslfication at the Technician 4 c] assi. fication level. I't is common ground that Mr. Singh performs no supervisory dut. ies and responsibilities in 'the discharge of his job functions. Accordingly, i.t i.s conceded that he would not be entitJed to secure entry into the T4 classification level in accordance with {.hat'. particular component of the T4 classification definition. Rather, the griever's success in securing reclassification at the higher level turns on his satisfying that. portion of the classification standard that is reserved for "non-supervisory specialists". That portion of the T4 c].assificat'ion definition reads as follows: In other positions these employees, as non-supervisory specialists, perform difficult and demanding microscope, spectrographic or other specialized and intricate examinations to identify samples, .to determine the presence of unstable or difficult, to isolate elements, etc., where the procedures followed and the techniques employed require a sound knowledge of scientifi~ methodology, and they usually provide an interpretatl, on of the test results obtained. They have final responsibility for the validity of the results obtained arid. they may be required, in some positions to appear in court as an expert witness. There is little controversy with respecL to the duties and responsibilities discharged by the griew)r in fulfilling the functions of Vehicle Emission Technician. lie works under the genera[ supervision of "a project engineer" who from time to time assigns "a proje,;{," (ie., a vehicle) for t,he purpose of testi, ng the emission results of exhaust subsLan(;t?s after various si_mulaLed driving experiences. The grievor i.s responsible for setting up the vehi~;le on the dynamomete'~ and .attaching various hoses, tubes ~lnd ct.her attachments necessary for entrapping the exhaust emissions. In that capaciLy he checks the ~Lt~ehmenLs ~o ensure that there is no "le~k~Ke" of the emissions wh~ie in the process of thei~ %r~nsferenee Lo the sto~e b.~s. DurlnK %he course of ~n experiment he w111 ensure ~h"t the sophisticated machinery that is used in separating, identifying and measuring the concentration of 'the exhaust ~umes are properly m~intained and regu].~ted in accordance with the m~chines' manuals and EPA standards. Often modifications to the machinery are made in order that Lhe calibration of the gases and pollutants are best reflected in %he test results. The ~r~evor's superior experience in de~].ing with the %e~tin~ ~ppar~tus and p~ocesses are of utmost importance in m~king ~n~ such ~d~ustments. The m~chines themselves record the concentration of the ~ases ~nd other emissions on s digital reading. The grievor with the assistance of the computer programme and other formula will translate the di~i~.aI me~sure into concentrations that are readily understood by the project engineer. If the digital reading appears "out of whack" or inconsistent with previous experiments the gcievor is liable to unilaterally redo the experiment in order to confirm the initial test result. The daLa retri~-~ved from the various machines with respect to the concentration or gas and other pollutants are referred to the proj~cL engineer. The project engj. ne,~r wi] ] .then prepare a report based on t, hat data thereby reflecting the author's judgment with respect to the eff:icacy of the qxperiment. The project engineer reserves the discretion to direct a retrial of the experiment with or without modification based on the data provided by the Vehicle Emission's Technician. There i.s n~ dispute that the project engineer relies heavily upon ~the grlev(~r i r~ carrying out each phase of an experiment. Moreover~ there was no di. spute~ indeed there was praise~ for the professional and competent manner in which the grievor performs his duties. The grievor is cequired~ in accordance with the job specifications~ t,o train others in the duties of Vehicle Emission Technician~ to m~et ~ith representativem of automobile~ gas and other re~ated industry oFFicials with respect to explaining the modus operandi of t,he experiments that are conducted~ to consult and work in concert, with the project engineer~ and the computer programmer in Fashioning a programme for measuring the concentration oF gases. Tn summary~ I,he grievor carries out the functions of a Vehicle Emission Technician in a manner that meets the objectives o~ the Job Speci Fi~a~,ion whose purpose reads as follows: T0 collect, analyze and report on data regarding vehicle emlssions~ and vehicle and fuel performance in support of ongoing research projects conducted by the Ministry of Environment and Transportation Technology and Energy Branch~ t,hvough the ~:onducl, ing of common and complete tests~ and the mai ntenan~2e and calibration of a.l]. testing equipment and instrumenl,s us~.~d i.n these tests. The grievo~- (:~ded (and in this regard there was no dispute) that h~, do(~s not prepare the repot'l, (:ont:aining the final - 4 - results of the tlala retrieved in the experi, mentaLion process. The pro.je¢'~t engineeP does this. Nor is he r'esponaib].e for the c~onLenL or results or the experiment, The proje(:L engineer i~ so a<:(:ounLab].e. Nor ~oUld the gr'ievor be ].ikely Lo be called a~ an "expert ~itnens' .in any court action ~il, h real)ecL 50 any cba.l.lenge Eo Lh~ ~:0ntents of the report, That is not to say he ~ould not be conduit, ed by the project engineer sith respect Lo the meLhodoZogy that ~as applied in the carrying ouE of an experi.menE. But ultimate responsibility for ~he test results, in the sense of ac(:ount,abilit, y for the accuracy and credibility of a report, lies squarely ~i~h ~he project engineer. The employer appeared Lo accept ~he notion that the griever engages in "complex" experimenEs invoZv~ng the Eype of Ee~ting that m.ighE very ~e.ll. be of an intricate or difficult nature. However~ iL questi, otxed the trade union's gsserLion that the griever in his preu~-~nt t~apaci.ty would ever engage in the type o~ "specialty tests" thaL would entitle Mr. Singb ko claim entitlement to be treated as a "non supervisory specia].isk", In that regard, the employer indicated that the griever does not (nor do the job specifications require 15) conduct scientific experiments of a nature thai: would necessitate he do without manuals in order Lo operate the machinery or that he not have red, ourse Lo the g~]dance of ~A standards in acchiev~ng a produ~Live result. Indeed, it is cleat that the griever does not engage in pure a~:i~nl~if~c experimentation ~n m~:cordance with the m~?Lhodolog7 I.h;~l. might be.required oF an engineer. In other wor~is, Lhe exp~,r-im~-~nts he conducts are pr. edeLermined~ repetitive and predictable, But even if he did other types of experiments the employer su}~lit.t.ed that the procesm of en~aging in "complex" or "specialLy" exper'[ments of a difficult or intricate nature oould not per se ~ar~an/ the grievor's elevation [o the higher T4 classification lev,el. Indeed, the preamble of the classification sl.andard as well as the Technician 3 classif[cation definihion were relied upon [,o support the notion thai; the grievor~ despite his impeccable i~r'~dent~ia].s, was properly classified at the T3 leve'[. The relevant, portions of the Preamble read as follows: "Complex" I'.esl.s and procedures are defined as those which require highly developed skills, 3udgment and experieace in their performance because results may be confused with others of similar qua] i ties. Procedures ma~ require modification due to differences in batches of :ingredients as determined by results wi l.b controls. Tests may be "complex" for different reasons, thus this category may be sub-divided into "difficult" ami "intricate" tests and pr'ocedures. "Difficult" in this context refers to tests and procedures, the performance of which 'require ~udgment in the selection of alternatives and variations %o standard procedures, the careful execution of a series of exacting manipulations of materials add apparatus, the operation and minor maintenance of sophisticated and sensitive laboratory instruments and the accurate recording of prooedures and results. The performance of a variety of difficult tests wou].d generally result in such positions being allocated %o th~ Technician 3 level, "Intricate" i.n this context means those teshs and procedures which require a large number of operations with many possible sources of error at various stages and require 8 high degree of skill and judgment in such functions as:- utilizing reference s,~urf~es to determine modi fi. cations of apparatus and variations of procedures; selecting, modifying and adapting test proced~,r~s Lo i)bta[n optimum results; recognizing and inl'.erprei;in~ r'l'ai~l.[[~ns which are dirf[cul. L to observe and wl}l{~h ~ari sigr, i ricantIy affect the outcome of the test; and (',,m[n~t.i. ng or i~t. ert)reting interim and final test results ~hich require t.he application or adv,mced ~aLheaatical t*'~,hniques and ;t sound.knowledge of st.~[entific metbodol, ogy. '['he proper' [)~,'f~rmance of "intrical~e" tests and procedures r'{~quires an und~'rsl.andi, ng of scienLi, fic processes a[ the processional l(~vel and emp].oyees performing such /ests ~ould n()rmally }-' a S~yienl. tst~ hue /hey may~ in /he absence of qualified prt) f¢~ssiona] st,iff~ be performed by a highly skilled a,~t ~xp~'ri{.~nced Technician. "Special. Ly" Les'.ts and pr'oc~edur~e~ are defined as ~ho~e ~hich are car'ri.d out without d~finit, e.ly outlined met;hods, ' usually req~)iring fre(lUe~[ modifiCa,l'::i, ons, and ~here special of modified app;tcatus or equipmertl; is util'ized. ]'ni;erpretal. ion ~)r results is based on kno~li~dge and expe~ienc~ ~' ,.~n a comparison ~ith standacds from reference laboratories; T~st.s and procedures of this nature are usually Found in v~s+~.~,~rh se!;l'.ings and normalJy are closely directed. by professi~)na] personnel but the technical ~o~k of a 's~Jb-pro~essi~nal nature is conducted by experienced i.echnoJ, ogica] staff. Employees in posi. kions of this na5ure would normally be allocated to the Techn'ician 3 level. And the related po,'tlon of Technician 3 class definition reads In some posi, t, ions these employees assJs{, professional or scientific: personnel in direct support of an experimental or research programme. In such positions they are required ~o perform a ~ar-i,~ty of "common"~ "complex", and "specialty" tests and /~r0cedures~ modifying techniques as necessary; see up and mod i~y~abo~atory apparatusL and maihtain detailed and accurate records of the results obtained. emDhas is added .~t would apt)eat- that the trade union's concessions that the grievor in his capacity as a Vehicle Emissions Technician.can neither satisfy the T4 classification si:an(lard of holding "final responsibility ~or the validity of the Lest results" obtained dur'ing the co~irse ()~ an'experiment nor meet the requirement of being eligible Lo act as an "expert witness" in a court of law or elsewhere %o defend the credibility of the test results are telling fact. ors in the disposition of this grievance. Indeed I.hose ~uncti. ons that would warrant the grievor's entry into the T4 class definition are currently being discharged by the project. engineer who is ultimately accountable for the results that-are ob~.ained. They do not form a part of the job specification for th,-~ V,~hicl. e Emission Technician. In other words, th(~ grievor would be per s,-~ dis,lualifi, ed ~rom ]eve] 4 entry for no'k being -7 - .~ ! qualified for satisfying "the accountabi'l, ity" factor, The trade utc}on, somewhat persuasive.[y~ submitted that the above interpretal:ion of the T4 class~fi, cat~on standard is simply unrealistic in i;be sense that it would require a special or unique individual ~} lh rare credentials as a technician lo ever secure entry into t.be T4 classification by reason of his or her "non 'supervlso~'y sp(~c.ialist' qualifications. It was therefore submitted that the apparently unreasonable qualifications expressed in th~ class definition be diluted to reflect what might otherwise ,!sable the grievor to qualify. In that. regard heavy reliance was placed on the employer's confidence and trust in the grievor's qualifications in conducting experiments and in .... ensuring that t.h,~ data results are accurate (in the context of the independent discretion he exhibits for these purposes) to suggest that he mee'Ls the "accountability" requirements of the T4 class definition. Otherwise, it was suggested that only "an engineer" without a professional engineering degree could ever secure entry into t. he T4 classification as a '"non-supervisory specialist". Tn having regard, to that particular submission we hold that the trade union has m'i. sdirected its argument with respect to the issues that have hi t. herto been placed in dispute before us. ~s i. nd~(~ated durir, g I.he hearing the grievance was formulated in such a way as ~o i~di(.~aLe that 5he grievor's complaint was that his position was bel. ter ~itted for the T4 cl. assificat~on than the ~:urrent T3 classi~i(~aLion in which he is presently situated. In l,hal, regard~ in ~:ordar~ce with "the accol~ntability requirement" expres.~ed in the T4 ~.lassification de£inl, tion we are compelled to hold that 'the grA~.vor clearly cannot meet that requirement. What the trade union is in ~act sugge~t.~ng i~ that the T4 cla~ definition is so unrealistic so as to be unreasonable in th~ sense that ~o T3 Lechnician who performs "non supervisory mpecJ, alist" funcLions can ever secure entry. The obvious consequence of any such submission is a requesL for a direction deleting and eliminating those portions of the T4 class definition thai. are indeed unreasonable. And, of course, the employer party should have been placed in a position had that issue been the thrust of the grievance complaint to defend the "reasonableness" and appropriateness of the T4 classificatio~ standard as wr] tLen. As this was not how the grievance was expressed we cannot make any comment or suggest any conclusion with respect to the t~mde uniom's submissions with respect to the alleged "unrealiL~" o~ the T4 class definition. For present purposes, we are o~ the opinion that even with .respect to the grievor~s responsibilities in carrying out his experiments (apart From ultimate accountabilit~ of the pro~ect engineer ~or the LesL results) he would not con~orm to the type of "non-supervisor~ specialist" eriteri~ necessary to secure entry into the T4 c]assi~icat]~on level. The grievor is ~onst~ained to md},~re Lo the machinerF's manuals and EPA standards in seL[.~ng up and conducting ~n experiment. Although he doe~ exhibit ~nd~p~,dent initiative in m~ing mod]fi.c~tions to an experiment bas,?d o~ ~him accumulated ~mowledge and experience such ~cti,)ns, in o~lr vi,~w, are ~2onsistent with the T3 classification description. And in most instances the grievor repeats the same experiments using the same methodology on a frequent and consistent'manner. Nor does the grievor in any way "identify" or "separate" or "isolate" gaseous "samples" for interpretation. Obviously the machinery he monitors performs those particular functions for him. Indeed, the only "interpretation" involved in these experiments involves the grievor measuring the concentration of gases and pollutants reflected in the digital reading on the machines. And to attain these objectives he has access to the computer programme. In other words, apart from the stringent requirements of the accountability factor, we find the Vehicle Emissions Technician does not meet the general requirement for reclassification at the. T4 level. Accordingly, the grievance must be dismissed.