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Home My WebLink About1991-0286.Sahsuvaroglum.92-02-17 ONTARIO EMPL OY~'$ DE LA COURONNE CROWN EMPLOYEES DEL'ONTARiO GRIEVANCE C,OMMISSION DE SETI'LEMENT REGLEMENT BOARD DES GRIEFS 180, RUE DUNDAS OUEST, BUREAU 2~, TORONTO (ONTARrO}. MSG ~Z8 FACSIM]LE/T~L~COP~E .. (4~6~ 326~1395 286/91 iN THE I~,TTER OF ~ ~EBITP~TION Under THE CROWN ENPLOYEES COLLECTIVE B~,RG~INING aCT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Sahsuvaroglum) Grievor The Crown in Right of Ontario '(Ministry of Transportation) Employer BEFORE: H. Waisglass Vice-Chairperson I. Thomson Member A. Merritt Member FOR THE R. Healey GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D. Jarvis EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING January 9, 10, 1992 2 DECISION T~is ts ~ classification grievance. The g~ievo¢ is employed as o Prelect Research Technician ~n the Employment ~nd Energy ~p~nch o~ the Hinistry of Transportation ~n Oc~vnsv~e~. H~ postt~n ~ ct~ssif~ed ~s Technic~ar~ 4, Physical Laboratory (Atyp(col). The Union seeks o B~rry order, ctaim~ng that his job does not Fit any existing classification. It submits that the classification of the ;rievor's ~ob as '¢atypicat" ~s dn admission by the ~inistry that the position is improperly ctossi~ted, In the o~ternattve tt submits that the ge~evoe's pos~t~on ts tmpeopee~y classified os Tach .t because that c~ssiftcatton does not contemplate, omon~ other thin§s, the desL;ning of instruments and the modification aha use of a data ~cquisitton system, includin~ the appltcation of computer technot6gy. The U~on argues t~c~t the ~sit~on ts neither properly ctassified to ~he' class seetes nor to Techntc~n 4 ~tthin that Physical Laboratory Technicie~ Clo'~s Series, su~itting that the grimvo~'s Position Speck6icotion does not accurately Oescribe ~he grievor's duties. The Emptcyer den~es that the grievor's position is incoprectty c!osstFted. Zt c~o~m$ that the word otyp~c~t ~s on administrator's notation ~ttoched tO the c~ossiftcotion and ks not po~t of the c~assiF~¢otion as such. the notc,tion indicates that the closSt6icotion does no~ exoctty f~t '~he ~ob ~esc~iption, tp this case, because the position does not nave the supe~'visory responsibilities which ore required Dy t~e class s~onaord at level ~, Never'theless, ~t ~s subnttted that the ~ob betongs kn the Physicot Loborcto~'y Technician Cl~ss Series and kt ?~os o reosonDbty close fit~ i~ not on ~xact fit, mt Lever 4 ~here i~ ks comrectiy ci~sst~ted. The ~rievor, tt is submitted ~orks tn ; physical laboratory ~here'he performs the core dutEes o~ a !obxD~otory technician os described tn the crass ser(es, port(cutorty those ot ~he 4th fever, except tmot he does not hove the superv~soey respo~ls~Diltttes desc~tbed ~n the C!oss stonNord. Hc~ever, iff the result, kf ther~ is an ~rror it ~s not o ~redt one, nor' ts it detrimental to the ~rievor (n thor the grtev.Dr ~s ~iYen the benefit of the doubt on the supervisory reqb~ree]emt. ~n the co~rse of the two heor~ng days the Board hemrQ extensive evidence pertmintng to the various duties mod responsibilities of the ~rievor, how he receives, conducts and completes his work ossigpments, the not~re amd de~ree of supervision and direction he receives from both his immediate supervisor ~nd the engineers and scientists who ore in charge of the particular prelects to which he ts assigned t~ provide his expert services. Suffice it to that tt~e Board find~ that the griever's Position Specification describes hss duties'and ~esponsibil~ttes with o reasonoble and sufficient degree of accuracy to be acceptoble. Zt ts acknowledged that he cdrr~es out his duties and responsibtlities, his porticulor speciotized contributions cs o~ expert techntcian, wit~ s_~me' degree of autonomy ~nd o 'ver~ high d,e;ree cf confidence, but not tndependently and not ~iti~out generot s~xpervi, ston and direct~en From his line supervisor ~nd Fr~ the engineers ond sclentists ere prefessionotly responsible for the po?ttcuior projects to ~htch he is assigned by h~s superv'[sor. His Posttion Specification properly his duties and ~'etated to~ks ore performed under ~generat s~pervision". The evidence does not support the Union's ~r;ument thor he perform~ those duties [described tn his Position Specificot;.on~ on his own, witi~out supervision. The professional direction and supe?vtsion whsch'the griever receives frota the Engineers and Scientists are responsibilities whicl~ h~ve been 1mpticttly detegoted to them by his line supervisor at the time when the griever is ossigned te one of them to contr~bute~his techn~cot expertise to o porticutar pro3ect. The Enginee~ [or Scientist! determines the p?ofessiono1 ?~equ~rements of the project to which the qr~evor ~s expected to i contribute w~thin the por~meters of his techn'~cot expertise. The Engineer is responsible lam" the project, inc1~dtn~ the griever's snput~. The griever is not, therefore, without general supervision in his ~ork. In support oF the grievor's request For m Berry order, counsel For the gr~avor ~rgued thor the otyp~co! designation ~s ~n ~tself o~ ~dm~ssion thor the job ~s wrongly clmssif~ed. He submits further thor the ~ob does not 'fit into the Physicol Lobormtory Technic~mn Clas~ Series; thor it does not Fit the clos$ stondord for Closs 4 in thor Series; and thor the position ~nclctdes core duties outside of the c!oss stmndord, The Booed finds ~othin~ in the grievor's evidence to support the ¥iew that any of his core duties fall outside of the class standard, He imBresses ~s os o very highly skilled and efficient technician ~ho is very competent at h~s job. He testified that he ~equires very little supervision. As he describes his )ob it ts very likely that his supervisor and h~s pro~ect teoder~, the eng~neer-s responsible for the progects tO which he is assigned [he ;s usually assigned to work ~ith ~ specific engineer or scientist em ~ specific project], f<nd him very resourceCut, dependobte and rel~o~le in c~rryi~§ out h~s technicc! support functions for which he is responsible in respect to the prelects to which he is ossi§ned. But there ~s no doubt thmt his duties ora responszbilities, (including h~s use of computers and h~s opptico%ions of computer technology to the memsur~n~ requirements of complex test pro]~ct~) os he described them, ore contempioted by ~he class st:ndord. ~e do no: Find any c~re duties thor do not fol~ within the class st~nd~rd. We do Find, h~wever, there is o core duty, $~pervision, which is in the c!.oss s~on~ord on~ ,hich i$ not o requirement of his position. Although this variation from the stondord is sign~ficont in tho~ supervision ~s on ialpo~tont requirement of the clo$s standard For ¢Ioss 4 i'n the ~hy$icm! Laboratory Technician ~los$ Series, we Find thor this ¥~ri~tion fr~ the c~os~ standard is such ~hot it is not detrimental to the ~rievO~'. Nor ts thls a substantial variation in the ~rie¥0r's duties from the requirements of the clo£s standard, suc~ os ~ould Support the conclusion that the grievor's ]ob ~s ~rongly ¢tossi~ed. We conclude that the grievor's position beto~gs ~n the Phys~cot Lob?otory Technician Closs Series and that ~t is not wronDl~ classified at Clo~$ ~ of thor series. ~e hmve determined that the grievor is current!y properly c!os$ified. The ~Atypicot" notation ~ign~fies, '~n this instance, ~hot the job does not contain one of ~he significant requirements of the class stondcrd, o supervisory duty, but the difference is acceptable; that is, the mifference i~ not detrimen~ot t~ the ~rievor mhd not SO subst~n~tot os to m~Re tt ~ wron~ classification. We one satisfied that the grtevbr'$ ~ob does not vary ~idety ~n its co~e ~eotures From the ,~mchetype of the c[~ss ~tondord. ? 5 .~e tuFn ~ow to the submission of the Union that impro,~r c!ass(fico, tton does nOt have to be proven because the ~Atyp(cat~ design, aa(on ts on admission the Emptoyer that the griever's posi~ion ts tmproperty ctassif'Led. It su~itted by Union counsel that the the Emptoyer's act o¢ attaching ~Atypicat" to the griever's classification titte constitutes sufficient proof cf' improper ctosstfication because no such ctasstftcation ex~sts, Further, tt is su~itaed the~ no such cldssification exists cs ~%echnictan 4, Physical Laboratory (Atypical)" i~l that there is no statutory authority for this classification to be found in Schedule 3 of Regulotton 881 under the Service Act. Section 4(a) of the Act requires the Civil Service Co~ission ~evaluatm end class[fy each position in the classified service and determine the qualifications therefore." Union counsel argues that because the C~tssion did not c~nply ~[th this mandatory requirement and foiled to pi~ce the ge'[evo~ in o statutority-required classification the griever is ~isclassified" (not unclassified). This apparently nave! submission has been examined and declded by another panel of this Board. On this issue, we endorse that deciston~ the Adey case [GSB 126g/88--D.FRASER, VICE CHAIR], where it was found that the notation ~otypicol~ must be removed from the grievor's classlf~cation, because the notation is there either in error or ~ithout legal authority. We prefer te soy, however, that the no~ation has no meaning or status within the classification system tis such~ but may serve some ~dmni~trotive or non-logo[ purpose. Zn either case, the result is the some. The grievor is properly classified os Technician ¢~ Physical Laboratory. As the Adey decision observes: "...o notation of =atypical', attached to ~ class standord, does no~ affect the criteria normot~y used by the Board ~n c~assiF~cat~on cases. ~us~ os the 8oord has no mondo~e to ~eo~ o ct~ss s~ndo~d gener~te~ under the authority by the Civil Service Commission, os 'atypical', neither does ~ position specificmt/on, or its mu~hors, h.~ve authority to vary a class standard set by the Commission." The [mp)oyem~s counsel has drown th~s Boord'~ ottentio~ otso to o 8nard F~n~ng i~ the Archer case [~SB 2$G/g~~ B, KELLER~ VICE-CHAIR] which is applicable also to the above-noted issue and ~i~ch we endorse: ~e do not quorre! with the fact that even in the post-Berry era jobs con be clossified os atypical. Indeed, numerous decisions of the Board hove maintained that. But, since ~erry, the Boar~ hos made certain stotements about w~,en consider on otypico~ c~ossificot~on appropriate. Essentially, the Boo~d stated that the essent~o~ elements oF the ]ob classified can't vary ~r~ the core features vf the archetype oF the.classification. [See KuramotE 0046/9~; 2agger et at 696/ ; Booth ~9~/90; Ketusky et This view is clearly enunciated by Vice-cha~rpe. rson Wit$on in the Kelusk~ ~ ~I am of the opinion that while the Berry' decision may ncr have tnvattdated atypical classifications, this Board given its clear mandate to d~rect that a ne~ classification be established must ~n~tst that a~ atyptca! c~os$~F[cat[on not very widely in tis core features Fr~n the ore,type of the ctosstF~cot'ton." The test to be applied in cases of this nature is described ~n Booth, Ig2/9~ by Vice-Che~rper'son Lc~: ' ~The jurisprudence as :o the test which must be met before the oworoing of a ~CrY order ts appropridte ~s that there must be o substor~tt~t variation ~n either the nature or scope of the duties ~e~formed by the gr~evor from that set out ~n the closs stOndord~ and no other class s:ondo~d reostnobly describes the Functions which ore carried out by the grievor," It should be noted also that the burden o{ proof is with the grtevor. Thi.~ Board finds that the esse~tot elements of the grtevor s p,o$ttton do not vary widely From the core ~eatures oF the c~¢;SS Standards for the Te.:hnic~<m 4, Physicai Lot>oratory. The position ts properly' classified as such. We have found one stQn~f(cant variation, a requt~emen~ aF the c!css standard, detrimental to the ~rtevor, nor ~s ~hts a substant[at variation fn the na~ure Qnd scope of the dutzes performed by the gr~evor from the core duttes se~ out ~n ~he class s~ndard, For the reosot~s set forth above, the 9r':evance ts den~ed. DATED AT HAMILTON, O.NTAR[O, THIS [TT, H DAY OF FEBRUARY, ~992 ., MEMBER ~,~ 1,4EP, R]?T, I~EMBER