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HomeMy WebLinkAbout1982-0595.Mulder.83-07-13IN THE MATTER OF AN ARBITRATION . Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLE-NT BOARD Between: Before: For the Grievor: For the Employer: ~ Hearing: May 19, 1983 OPSEU (Jim Mulder) Grievor - And - The Crown in Right of Ontario (Ministry of the Environment) Employer R. L. Verity, Q.C. Vice Chairman R. Russell Member G. B. Walker Member S. Laycock Grievance Officer Ontario Public Service Employees Union G. S. Feeley Manager, Personnel Operations Personnel Services Branch Ministry of the Environment - 2 - DECISION In a Grievance dated August 3, 1982, the Grievor Jim Mulder, alleges that he .is.improperly classified as an Environmental Technician 3. By way of settlement, he seeks reclassification to the higher level of Environment Technician 4. The Grievor is presently employed as a Geohydraulic Evaluator with the Ministry's Water Resources Assessment Division, Technical Support Section (Southeastern Region) at .Kingston. Prior to 1981, the Grievor's position title was Quasi-Approvals Officer at the same location. His seniority dates back to 1971. The Position specification of the Grievor's present job reads as follows (Exhibit 6): The Position Specification of the Grievor's present job reads as follows (Exhibit 6): Position Code 37-0364-60 PART 1 Position Title This position is: Geohydraulic Evaluator q New El Revised Previous Position Title Class Title Class Code Position Code Quasi-Approvals Office,r Env. Tech 3 61404 37-0364-60 Immediate Supervisor's Title Position Code Chief, Water Resources Assessment 37-0364-40 Ministry Division Environment Regional Operations & Laboratories Branch Location (Address) 133 Dalton Street, 2. Purpose of Position (Why does this position exist? State Goals Objectives etc.) To examine all lacustrine and riverine shore development as it relates to dredging;deepening, filling and the erection of structures and facilities. To review and comment on the technical and environmental aspects of such development with respect to immediate and long-term effects on the shore zone. 3. Summary of Duties and Responsibilities (Indicate percentage of time spent on each significant function. Indicate scope, equipment, working conditions unusual features etc.) 1. 0% a) Within the.jurisdiction and policies of the Ministry to review and comment on proposals and plans which may appreciably alter or change the shore regime; its water quality; and its use. These proposals may relate to application or project under Ministry mandate or as circulated through other government age,ncies and directed to this Ministry for comment and/or quasi-approval. Such as: applications for surface rights (use of Crown Land), water management activities (dam construction and channelization), water lots (filling, construction of causeways, docks, erosion protection structures) circulated to the Region by the Ministry of Natural Resources, Regional Conservation Authorities, Trent or Rideau Waterway Authority, Ministry of Agriculture, Ministry of Transportation & Communications or the private sector; applications under the Small Craft Harbour Assistance Program (construction, deepening, or expansion of harbours and .marinas) circulated to the Region by the Federal Ministry of the Environment; private, Provincial and Federal water activities (removal or placement of fill, structures to a navigable water) circu- lated to the Region by the Federal Department of Transport; class assessments, utility projects, subdivision developments etc., which involve the shore regime and are filed under various Ministry applications and procedures; b) To investigate environmental problems and complaints arising from authorized or unauthorized shore or nearshore activities c) To review and survey approved construction p'rojects to ensure compliance with expressed terms and conditions of the Ministr : d e 2. a 20% - 4 - To encourage public awareness and greater understanding of the natural systems at play within the freshwater shore corridor and promote judicious human action. To keep informed of new technical, legal and policy changes related to the shore resource. Additional duties assigned to the position relate to the arrangement and procurement of equipment and services for the Technical Support Section. This involves the arrangement of purchase orders (contractual and general); record keeping; amendments; and general follow-up. The incumbent is also expected to provide such information to the Technical Support Manager and Chief in the form of monthly expenditure reports or upon request for -such purposes as budget preparation, funding allocation, etc. As assigned. 4. Skills,and knowledge required to perform the work (state I education, training, experience etc.) Graduate from a Resources or Engineering Technology course with considerable knowledge and practical experience with the geohydraulic laws and processes of erosion, transport, Andy accretion; and their integrated relationship to the aquatic and terrestrial shoreform. The position requires a thorough understanding and perception of: the dynamics of the shore environment such as meandering progression, bluff recession, beach systems, wind/wave, excavation and entrainment, cross-shore and long-shore movement, etc.; the ecological and environmental character of the shore zone; .lts sensitivity, capabilities, and resilency to shore development; the "state of the art" and technical fundamentals, method- ology of shore construction, dredging, etc.; the economic and cultural pressures related to the sho r resource (the technical problems require an understand i of the lake and river shore ar,eas, as well as the diff i of anticipating the pressures on freshwater shores and results of their use); the policies, regulations, practices and guidelines re 1 to filling, deepening and construction in the shore environment and the requirements and complications of contaminants and detritus materials associated with such activities. e ng culty the ated - 5 - JUOGEMENT The incumben t must be able to rationalize the importance of the project. The discipline of shore assessment is such that the accumulative effect is often of more significance than the individ~ual effect. The incumbent must b'e able to weigh the long- term criteria (water use and its quality, habitat depletion, shore suitability and maintenance, "in scale" etc.) and come up with reasonable guidelines and controls which meet both the immediate and long-term concerns of the shore environment. Often these individual projects have only a "key hole" perspective on degradation making the position of the Ministry subjective rather than absolute. The incumbent must be able to judge the degree, need and limitations for involv.ement by the Ministry. ACCOUNTABILITY The incumbent prepares the letter of authorization for the Ministry outlining the concerns and guidelines for approval.' From time to time, the incumbent will be required to commit the Ministry to on-si decisions without the benefit of consultation and/or approval from the immediate supervisor. The incumbent must therefore have the competence to accurately assess the env.ironmental, economic and legal implications of his decisions. CONTACT te dark requires regular contact with environmental officers, related specialists, and other government agencies in order to properly address the concerns and appropriate solutions. Duties also necessi- tate routine contact with the public and proponents of the projects in order to discuss~the.details of the proposed work; procedures of compliance and concerns of the.Ministry and the private sector. 5. Signatures bate Date Immediate Supervisor Da MO Yr Ministry Official Da MO Yr "M. J. German" 08 9 81 "R. E. Moore" 8 (please type supervisor's name) 9 81, (please type official's name M. J. German, Chief Water Res. & title) Assess.~ R. E. Moore, Director 5. CLASS ALLOCATION Class Title Class Code Occupational Effective Date Group.No. Da MO Yr Environmental Technician 3 61404 TS 07 01 01 82 I have classified this position under authority to me by the Deputy Yinister and in accordance with the Civil Service Commission Classi- fication Standards for the following reasons: A. The work requires examination of shore development activity and the assessment of the technical and environmental effects on the shore zone. - 6 - B. Errors in assessment'of the environmental implications could result in environmental damage or increased costs to the individual. C. The incumbent is responsible for completeness and accuracy of inspections conducted, and frequently exercises independent judgement in making "on-side" decisions. Signature 0 Authorized Evaluator if Date "J. M. Charles Da MO Yr (Pl;;;E)type evaluator's 14 01 82 J. M. Charles, Personnel Representative In his previous position of Quasi-Approvals Officer, the Grievor's Position Specification (Exhibit 14) was similar to his present job with the exception in the former position he performed certain clerical tasks for the entire region.. In the previous position, the Grievor's clerical functions include~d Stores Officer incumbent in which he maintained an inventory of the Region's technical equipment, allocated the use of that equipment, identified deficiencies and arranged all necessary purchases, maintenance and repairs. In his present position as a Geohydraulic Evaluator, the Grievor has no regional clerical responsibilities. The Gr ievor testified at the Hearing that his Position Specification (Exhibit 6) accurately reflected his present job. Apparently the Grievor is the only hydraulic evaluator in Ontar In that position, the Grievor reviews all proposals directed'to io. the attention of the Ministry's southeastern region relat marine construction. Specifically the proposals in which Grievor is involved concerns dredging, filling, harbours, ing to the bridges, - 7 - and even pipelines. Proposals directed to the southeastern . region of the Ministry of the Environment come from a variety of sources such as the Federal Department of Transport, the Ontario Ministry of Natural Resources, the Ontario Ministry of Transportation and Communication, Conservation Authorities and Municipalities. The proposals involving marine construction have increased substantially from 24 in 1971 to 91 in 1982. Init ially, the Grievor's responsibility was to review and comment upon marine construction proposals which affected water quality. However, since the proclamation of the Ontario Environmental Assessment Act in January of 1977, the Grievor's responsibilities have been expanded to include a consideration of the impact of any proposal upon the physical environment. Accordingly, the broader i environment". was required the Grievor's responsibility is now to consider ssue of the "physical destruction of the natural Prior to 1977, the only legislation the Grievor to work with wasp the Ontario Water Resources Act. At the present time, the Grievor has the responsibility to consider the provisions of the Ontario Environmental Assessment Act and the Ontario Environmental Protection Act. As pa~rt of his job function, the Grievor must complete a field inspection; must deal directly with the proponents to discuss a project; must indicate either orally or in writing the Ministry's concerns; and subsequently must prepare a letter of confirmation for signature by the Ministry's approval officer. : : ,.~. ,,..~ ,..: .~. ; .~~.. ... i -8- The evidence is clear that the Grievor perfo~rms his job to the complete satisfaction of his superiors and largely without super- vision or direction. The Chief of the Water Resources Assessment Division, Murray German, testified that the Grievor is not required to write reports per se, but is required to prepare commentaries on all proposals affecting ma,rine construction. In addition, Mr. German testified that the Griever's "judgement" was very good and that he was a "very capable technician". We now turn to consider the issue of t~he appropriate classification. The preamble of the class standard Environmental Technician l-4 (Exhibit 3) reads in part as follows: "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." The preamble goes on to say: "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." - 9 - The two relevant class standards are Environmental Technician 3 and 4. The class standard for Environmental Technician 3 provides (Exhibit 4): "CLASS STANDARD: ENVIRONMENTAL TECHNICIAN 3 This class covers positions involving inspections and investigations of the full range of activities in the environmental 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 of the natural environment. Others in the environmental monitoring function involve res.pon- sibility for the selection, operation and maintenance of specialized, complex electronic chemical or mechanical air, water or wa,stewater monitoring equipment in field locations resulting in the production of validated data for use in environmental assessment programmes. In still other posi- tions, employees in this classification may assist profe- ssional staff or senior technician~s 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 control and monitoring equipment, communal water and sewage treatment projects, waste management sites and systems, and vehicle emissions to ensure that they comply with established prac- tices 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 gradu- ation from a recognized institute of technology or community college plus several years of related exoerience. - 10 - 2. Judoement: Work is performed under minimum supervision with considerable functional independence. Mature judgement is exercised in decision- making when unusual or uhpredictable 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 investi- gations, inspections or other projects, including the interpretation and analysis of physical and field data and laboratory results, 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 involv,e the nature and amount of data to be collected, actions taken, recommendations made, and can usually be based on precedent or established practice. Errors may cause inappropriate action and expense by the Ministry, industry, or private individu'als 4. Contacts: 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 purpose 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 information before public bodies such as environmental hearings, municipal councils, ratepayers' associations, or courts of law. In all contacts the employee is assumed to officially represent the Ministry and present Ministry policy." \ .~. .i ,, :,~~, ..- ,..~ z..:.. “.. - 11 - The class standard for Environmental Technician 4 provides (Exhibit 5): "CLASS STANDARD: 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 or emission control installations, or co-ordinating the investigation and clean up of sp.ills of hazardous materials, investigating fish kills, or conducting studies of the natural environment, etc., !I& they exercise advanced respon- sibilities across a range of several areas in the environmental and pollution control field; functioning as group leaders ~providing technical direction, co-ordination and training to other technical. staff, .including instructing in technical training programmes. The compensable factors at this level'are typically reflected as follows: 1. Know'ledge: Work requires the technical expertise, flexibility and depth of background to deal independently with a wide variety of unpredictable environmental pro- blems or with specialized problems where the individuals' knowledge may be the only guide to action. Such knowledge is normally acquired through gr~aduation from a recognized insti:tute 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 orincioles to new oroblems which do not respond to'precehent or estab lished practice. ..: - 12 - 3. Accountability: These positions are fully accountable for thee technical accuracy and q'uality of data collected or produced and for comprehensive technical re- ports with recommendations as a result of their decision on necessary information; format and content of reports; and appropriateness of re- commendations. Such reports are suitable for distribution outside the Ministrv after onlv general review by the supervi recommendations could result monetary loss to the Ministry damage to the Ministry's cred 4. Contacts: ' or". Poor " n considerable or others and in bility and prestige. Work( involves a wide variety of continuing con- tacts with governmental and industrial officials at the operational, technical, professional and management levels such as Chief Operators or Superintendents of water and sewage treatment plants! industrial plant supe.rintendents, technical, scientific and engineering officials of their own Ministry, other Provincial Ministries, the, Govern- ment of Canada and international agencies. The contacts are for the purpose of exchanging information, giving advice; publishing interpre- tative 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 Ministry as an expert, and to~present Ministry policy." Previous panels of the Grievance Settlement Board have considered classification issues involving Environmental Technicians 3 and 4.~ See R. E. Stiles and Ministry of the Environment, 310/80 (Barton); OPSEU (J. L. Charbonneau and I. A. Skomorowski) and Ministry of the Environment,.435/80 (Gorsky); Messrs. Newdick and Jansen and Ministry of the invironment, 516/80, 517/80 (Barton); and OPSEU (Mr. John Sit) and Ministry of the Environment, 226/82 (Samuels). .,. .’ _ - 13 - The class standards in question are somewhat generalized; however, personnel in the Environmental Technician 4 classifi;ation function as recognized experts in specialized work or function in advanced supervisory capacities in several areas in the environmental and pollution control field In the instant Gri Grievor has no supervisory r evance, the evidence is clear that the esponsibilities. This Board is of the opinion that although the Grievor performs specialized work the evidence falls short that the Grievor is recognized as an expert. The evidence is clear that the Griever, is a highly skilled employee who is performing his functions in a most satisfactory manner. We accept the Grievor's evidence and the evidence of Murray German that the proclamation of the Ontario Environmen t al Assessment Act has given the Grievor additional responsibi 1 ities which in conjunction with experience garnered on the job have resulted in a more sophisticated performance on the part of the Grievor. However, it is fair to say that increased sophistication in the job performance by an employee is not of itself sufficient reason to warrant a higher classification. In the Environmental Techni'cian 4 class standard, the contact component (one of the four compensable factors) contemplates a level of contact with senior management levels. Accepting the evidence of Mr. German, we cannot - 14 - find that the Grievor has the requi red level of contacts contemplated by the higher classifi cation. Accordingly, we. find the Grievor is properly classified at the present time. Therefore this Grievance is denied. A.D., 1 DATED at Brantford, Ontario, this 13th day of,Suly, 983. R. L. Verity, Q.C. Vice Chairman "I dissent" (see attached) R. Russell Member G..B. Walker Member 5: 2410 5: 2430 ,;. -,i DISSENT OPSEU (Jim Mulderl and Crown/Ontario (Ministry of the Environment) I regret I am unable to agree with the draft award of the Chairman in this matter. In fact, in my opinion, this case cries out for an upgrade for the grievor, more so than most. I make that somewhat extravagant claim based on the evidence of both the grievor and the management, plus the various ex- hibits, particularly Exhibit 5 wherein it sets out to be an ET4 one functions as-either a HECOGNISED expert or as a group leader (my emphasis). It is my view that the totality of the evidence of both the grievor and the management (which~ I will examine) reveals / that Mr. Mulder is, in fact, an expert in his field, but management has, as yet, not given him the formal recognition (de jure) but rather he occupies the defacto position of an expert in his field. This is born out in a number of ways. He is the ONLY Hydraulic Evaluator in the province. In fact, Exhibit 13 makes it clear that at times he is the official representative of the Ministry of the Environment. Surely this alone could qualify him as a specialist. He and he alone deals with the proponents and he alone (because he's the only one who knows the work in his area) determines what needs to be done. .This he does based on his experience and his expertise. It will be noted that the evidence of management through Mr. German when he was asked, "Have you had occasion to dispute any of Mulder's reports," his answer was I'no". Also, Mr. German agreed that the job of the grievor had changed'in that he now had to take into consideration the Act and operates within it, - 2 - whereas previously he only had to check on the quality of water. Also in cross examination, Mr. German referred to Mr. Mulder's work as follows, "I spent some time with Mr. Mulder., and he proved he was very capable, and he used good judgement." He went on to say, "He deals (by himself) with the proponent, in most cases provides verbal instructions to the proponent." Again, Mr. German gave examples of how Mr. Mulder acts on his own on behalf of the Ministry. One such example was in Odessa where Mr. Mulder verbally (on his own) ordered the contractor to "get the dam out." Reference was made by the grievor to the work he does in relation to pipeline construction which did not exist prior to 1978. Also, we, as a Board, should take'.note of Exhibit 8, where if an error is made it could run into millions of dollars. Exhibit.9 reveals the over-all comprehensiveness of the grievor's work. Exhibit 10 shows the important long-term effects of his work in this area. Finally, Exhibit 11 reveals the grievor's connections in advising the district manager in a field in which the grievor was the expert, namely, ice conditions. It was further agreed by both the grievor and the represent- ative of management that an error by the grievor could be very costly but that his performance over the years had been free of such errors. As stated in the Chairman's draft, the class standards (Environmental Technician 3 & 4)in question are somewhat generalized. One could go so far as to says that the distinguish- ing features~are that an ET4 provides that one must either super- vise o:ther employees or be RECOGNISED as an expert (my emphasis). -3- The grievor could not supervise others as there is none to supervise. As for him being an expert, I believe the evidence points thisout most clearly, what is lacking is management's recognition of same. It is in this area, in my opinion, the Board could and should, correct this error in judgement. I I believe Professor Gorsky provides us with some useful comparisons in his decision in the Charbonneau case 435/80.. On page 35 he says, "I would experience some difficulty in differentiating between language chosen to describe ET3 and ET4 classifications." I believe the Mulder case also falls in that category of a problem. Professor Gorsky then refers to another case, Re - Montague 110/78, pages 5 & 6, which appears to be on point with our case. It says in part: "The Board's concern is -.-whether the griever's job has been improperly classified, when that job is measured against absolute ~standards. Often, the description of jobs of employees in the higher classification will only serve to illustrate the application to particular cases of what are necessarily generally worded standards." I submit that is precisely the situation in the Mulder case. An examination of Exhibit 5 (ET4) under the four numbered duties shows that the grievor did~, in fact, all the tasks set out in 1, 2, and,3 and in 4 while he didn't have continuing contact, he did by and~large meet the requirements set out under 4. Where then does he: fail to qualify under the Class Standard? It is only in the preamble wherein it sets out, they either function as a RBCOGNISED expert or as a group leader, that you qualify as an ET4. -7 - 4 - It seems fair and logical that if one meets the four standards oe KNOWLEDGE - JUDGEMENT - ACCOUNTABILITY - and CONTACTS, one is an expert in this field and should be so recognised by management. I would, therefore, allow this grievance and make the necessary financial adjustment for an ET4. /ch