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HomeMy WebLinkAbout1980-0308.Haldane et al.81-06-19IN THE MATTER OF AN ARBlTRATION Uoder The CROWN EMPLOYEES COLLECTIVE BARGAINING AC? Before THE GRlEVAlUCE SETTLEMENT BOARD Between: OPSEU (Derek Haldane et al) and The Crown in Right af Ontario ~Ministry of the Environment Before: Mr. P. Draper Vice-Chairman Mr. C. K. C;ifflr :Xenber Mr. I. ‘iho.nson ?demwr For the Griever: For the Emg!oyer: - Mr. N. A. Lczay, Grievance Ckssification Zfi::r Onrxio Pl;blic Service Empiofees iir.icll ,Mr. R. Ketxedy, Personnel Officer h;inisVy of the Environment C. 5. Feeley, Manager, Personnel Operations Ministry of the Environment Hearing: May 21,1931 The grievors, Peter Wolfe and Derek Haldane, grieve that thei: positions are improperly classified as Environmental Technician 3 and seek re-classification as Environmental Technician 4. The class standards for the two positions are the following: ENVIRONMENTAL TECHNICIAN 3 This class covers positions involving inspections and investigations of the full range of activities in the environmentai assessment and pollution control field. In some positions, they conduct investigations of pollution of air (stationary and mobile sources), land or water, including noise, and plan, organize and conduct assessment surveys and monitoring df the natural environment. Others in the environmental monitoring funcxion involve responsibility for the selection, operation and maintenance of specialized, complex electronic , chemical or mechanical air, water or wastewater monitoring equipment in field locations resulting in the production of validated data for use in environmental assessment programmes. In still other positions, employees in this classification may assist professional staff or senior technicians in the clean up of hazardous spills, or in conducting applied research projects or surveys to evaluate new technology and methods, assess the natural environment, effect corrective action in the case of malfunctioning pollution control equipment, or in the processing of approvals. The compensable factors at this level are typically reflected as follows: 1. Knowledge: Work requires the technical expertise, approaches and practices to deal effectively with a wide variety .of environmental matters such as inspection of newly installed or malfunctioning ,private sewage disposal systems of all sizes (e.g. serving schools, nursing homes, etc.), industrial air and water pollution connol and monitoring equipment, communal water and sewage treatment projects, waste management sites and systems, and vehicle emissions to ensure that they comply with established practices and standards, or to qualitatively assess the effects of polluting discharges on the surrounding environment (e.g. determine wastewater loading guidelines for municipal/industrial discharges). .Such knowledge is normally acquired through graduation from a recognized institute of technology or community college plus several years of rejated experience. -3- ?. Judgement: Work is performed under minimum supervision with considerable functional independence. ;Mature judgement is exercised in decision-making when unusual or unpredictable, situations arise. .Matters deviating from established practices and precedents are dealt with at this level and only sensitive or contentious matters are referred to supervisors. Independent judgement is exercised in the preparation of comprehensive technical reports on all investigations, inspections or other projects, including the interpretation and analysis of physical and field data and laboratory r~ssults, making recommendations where necessary. 3. Accountability: These positions are accountable for the accuracy and completeness of the data collected and of the investigations or inspections conducted. Decisions involve the nature and amount of data to be collected, actions taken, recommendations made, and can usually be based m precedent or established practice. Errors may cause inappropriate action and expense by the Ministry, indusvy, or private individuals. 4. Cmtacts: Contacts may be with private individuals, small’business proprietors or professional, technical and operational staff of industry, municipalities, their own or other Ministries and/or the Federal Government, The propose of the contacts will be to exchange or collect information and data, give advice, make recommendations or enforce regulations. On occasion, it may be necessary to appear as a witness providing technical evidence and/or informatim before public bodies such as environmental hearings, municipal councils, ratepayers’ associations, or courts of law. In all contacts the employee is assumed m officially represent the Ministry and present *Ministry policy. ENVIRONMENTAL TECHNICIAN 4 This class covers positions of employees involved in conducting and co-ordinating technically complex and specialized work in environmental assessment and pollution control. They either function as recognized experts in specialized work such as the inspection/investigation of complicated malfunctioning municipal or industrial water, wastewater -4- emission control installations, or co-ordinating the investigation and clean up of spills of hazardous materials, investigating fish kills, or conducting studies of the natural environment, etc., OR they exercise advanced responsibilites across a range of several areFin the environmental and pollutim control field, functioning as group leaders providing technical direction, co-ordination and training to other technical staf:, including insaucting in technical training programmes. The compensable factors at this level are typically reflected as follows: 1. Knowledge: Work requires the technical expertise, flexibility and depth of background to deaf independently with a wide variety of unpredictable environmental problems or with specialized problems where the individuals’ knowledge may be the only guide to action. Such knowledge is normally acquired through graduation from a recognized institute of technology or community college plus many years’of progressively responsible related experience. 2. Judgement: Work is performed under general direction. Judgement is employed to marshal the necessary human, material and/or information resources and to organize studies,. surveys, investigations or inspections independently, referring to supervisors only in the event of very unusual circumstances, and periodically to advise on progress. Judgement is exercised in applying general technical principles to new problems which do not respond to precedent or established practice. , 3. Accountability: These positions are fully accountable for the technical accuracy and quality of data collected cr produced and for comprehensive technical reports with recommendations as a result of their decision on necessary information: format and content of reports; and appropriateness of recommendations. Such reports are suitable for distribution outside the Ministry after only general review by the supervisor. Poor recommendations could result in considerable monetary loss to the Ministry or others and in damage to the ~Minisay’s credibility and prestige. 4. Contacts: Work involves a wide variety of continuing contacts with governmental and industrial officials~ at the ,i -5- operational, technical, professional and management levels such as Chief Operators or Superintendents of water ard sewage treatment plants, indusaial plant superintendents, technical, scientific and engineering officials of their own Ministry, other Provincial ,Ministries, the Government of Canada and international agendes. The contacts are for the purpose of exchanging information, giving advice, publishing interpretative data, making recommendations, planning co-operative studies, or enforcing regulations. It may be necessary occasionally to appear as a witness or technical expert before public hearings, such as the Environmental Hearing Board, or a court of law. In all contacts, the employee is assumed to officially represent the iMinistry as an expert, and to present ,Ministry policy. The preamble to the Environmental Technician I - 4 series reads in part: PREAMBLE ENVIRONMENTAL TECHNICIAN 1 - 4 INCLUSIONS: This series covers positions responsible for investigational, inspectional, data collection and preliminary evaluative and interpretive work on matters relating to environmental assessment and pollution control in the natural environment... COMPENSABLE FACTORS: There are four levels in this series and the assignment of positions to the appropriate levels will be based on the consideration of four compensable factors: knowledge, contacts, judgement and accountability. At the ‘outset of the hearing the representative of the employer raised two preliminary objections. The first objection was that the grievances should be heard -6- individually, the grievors being employed in separate geographical and organizational groups. In reply, it was argued that the positions in question come under one class standard and one position specification. Further, it was stated that three separate grievances had originally been filed but that a single second stage meeting had been held under.the grievance procedure at which they were .discussed collectivedly (one grievance, that of Rooert Cable, is not being pursued). The Board overruled the objection on the ground that although two grievers were involved, what was before rhe Board was, in effect, a single dassification grievance. The second objection related to the hearing of Mr. Wolfe’s grievance. When served with notice of the application the employer expressed “concern at the undue delay and lack of direct communication” but raised no formal objection to the application. The Board overruled the objection, being of the opinion that the employer, having accepted notice of the application without objection (albeit with some dissatisfaction as to the lapse of time), could not now assert that the application was defective. At this stage of the hearing, the Board having decided to hear .Mr. W.olfe, the parties agreed that the Board’s decision on his grievance would apply to and determine the grievance of 1Mr. Haldane. The griever, Peter Wolfe, is employed in the Industrial Abatement Section, Toronto West District, Central Region of the Ministry of the Environment. In general terms, his work has to do with air, water Andy land -?- pollution in the indusnial sector. The, governing statute is the Environmental Protection Act. The district, one of two in the region, is in charge of Mr. W. Bartkiw, District Officer. The other district; Toronto East, is in charge of iMr. Boyd, District Officer. When his grievance was filed (February, 1980) the grievor’s immediate superior was <Mr. I. GaIlacher whose title was Senior Environmental Officer and whose classificaticn was Environmental Technician 4. LMr. CaIIacher has since been promoted out of the bargaining unit and was succeeded by the present incumbent, Mr. Sennema, who carries the same title and dassification. In February, 1980, the position specification describing the grievor’s duties was slightly more than four years old. At the second stage of the grievance procedure a draft of a new position specification prepared by ,Mr. Bartkiw and iLlr. Boyd was presented to the grievor for discussion. While agreeing generally with the draft, he believed that certain of his duties had been omitted and others were understated. He therefore prepared and submitted his own version of his duties. The grievor testified that between 1975 and 1980 the volume, complexity and responsibility of his work had steadily increased. During that period he had carried out assignments that would normally have been given to professional engineers, or to E.T.4%, or to E.T.3’s acting under supervision. In the course of such assignments he dealt directly with various ministry officials including the ,Minister on occasion. The assignments came mainly from 1Mr. Bartkiw, none from the Senior . Environmental Officer. Six examples of reports or surveys made by the -8- . , griever were submitted in evidence. One was a “Section 83 Report” done in collaboration with a staff professional engineer, which dealt with a violation of the statute and led to the issuance of a control order requiring the offender to take remedial measures. The draft order was approved by the Legal Services Branch of the ministry. Recommendations were later made to the Deputy Minister regarding requests from the offender for amendments to the conaol order. A Nnisay press release named the grievor as the media contact. A second was an investigation of odorous smoke emissions resufting in a Section 83 Report, a recommendation for the issuance of a control order and a draft of the terms of the order. The grievor was the minisuy spokesman at meetings of residents of the neighbourhood affected chaired by the local member of the provincial legislature. A third was an investigation of a hazardous material spill in the course of which ,Mr. Bartkiw and the grievor represented the ministry at Toronto Board of Health meetings and the grievor was the ministry contact with the media. James Gallacher is at present Supervisor, Special Investigation Unit, Central Reglcn of the Minisay of the Environment. Called as a witness on behalf of the griever, he testified that for some three years prior to February, 1980, he was employed in the same office as was the grievor. HIS principal duty was to coordinate the work of the E.T.4’s and E.T.35 on the staff. He confirmed that the work of the Toronto West District had grown progessively heavier during hiss tenure there and for that reason and because one of the E.T.4’s had left and was not replaced the grievor was sometimes called upon to perform duties beyond the normal scope of his classification. There is some unavoidable overlap between the duties of E.T.3’s and E.T.4’s in addition to which “in emergencies everyone works above classification”. In his opinion ~“when you get into Section 83 reports .and control orders ” the responsibilities are clearly those of an E.T.4. Mr. Bartkiw testified that E.T.3’s do the type of work described in the draft position specification drawn up by him and .Mr. Boyd. E.T.4’s must be specialists with a particular technical expertise. .Mr. Wolfe is a generalist, not a specialist. Although he acknowledges that it is difficult to distinguish between the work of E.T.4’s and E.T.3’s, he is certain that he has not required the grieyor to do E.T.4 work. In his testimony the grievor referred to the 1975 position specification, the later draft and his own version, alJ of which were before the Board, as together describing his duties as they existed in February, 1980. We see no material difference amongst the three descriptions and if they accurately describe the grievor’s duties, other considerations aside, his position could be said to have been properly classified as df February, 1980. However, it is argued on behalf of the grievor that he was, in fact, doing the work set out in the class standard for E.T.4’s. That is to say, the class standard for E.TA’s more properly describes the grievor’s work at the relevant tinie than does the class standard for E.T.3’s. Having carefully compared the two class standards and measured the grievor’s work against each of them, we are not persuaded to that view. - IO - !Ve have no doubt that the griever was, on a number of occasions during the period in question, selected from among the group of E.T.3’s for especially demanding and sensitive assignments which involved duties and responsibilities beyord those covered by the class standard for his position. The three assignments referred to earlier are examples. Nevertheless, we have concluded, on the evidence before us, that the griever did not in the course of his work over a period of time prior to February, 1980, regular!y perform. duties substantially similar to those contained in the E.T.4 class standard. The grievance is dismissed. Our decision apart, there are several aspects of this case that we believe warrant comment. )Ve were dismayed by Mr. Bartkiw’s insistence that for an employee to become an E.T.4 there must either be an appointment available as a Senior Environmental Officer (e.g. ,Mr. Gallacher) or there must exist a requirement for a technical specialist to work full time in a particular field such as oil refining. We find nothing to support that view either in the E.T.4 class standard or in the scheme of progression implied in the sequential class standards for E.T.1 through E.T.4. The case appears to us to illustrate those instances - not unique to the ,Ministry involved - where administration of the classification system by the employer consists largely of reacting to grievances rather . ‘f - II - than acting positively to monitor the operation of the system on a continuing basis. It would be a refreshing departure if rhe employer here were to initiate an inquiry as to whether or not Mr. Wolfe’s position is now, a year and more after his grievance was filed, properly classified. Finally, ‘we feel strongly that more communication and cooperation between the parties, if it had not iec to settlement of the grievance, would at least have resulted in better preparation and presentation of the respective posiiions of the parties. DATED at Toronto this 19th day of June, 1981. “I concur” C. K. Griffin - Member "I concur" I. Thomson - Member IT