Loading...
HomeMy WebLinkAbout1984-0539.Baldwin and Lyng.87-04-01 DecisionBETWEEN : BEFORE : 539/84 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (A. Baldwin and J. Lyng) Gr ievo rs and The Crown in Right of Ontario (Ministry of the Environment) E.E. Palmer, Q.C. H. Simon G. Milley Employer Vice-Chai rman Member Member FOR THE GRIEVORS: R. Anand, Counsel Cavalluzzo, Hayes and Lennon Barristers and Solicitors FOR THE EMPLOYER: A. Tarasuk, Counsel Central Ontario Industrial Relations Institute HEARING DATES: June 10, 1985 November 21 and 29, 1985 DECISION The present arbitration arises out of grievances filed by two employee: of the Employer, Messrs. A. Baldwin and J. Lyng. The gist of their complaint is that they alleged they were improperly classed as Environmental Technician 4s. Consequently, they request appropriate relief, reference to the exact nature of which will be made later. This matter was not settled during the grievance procedure and so forms the basis of the present arbitration, hearings in relation to which were held in Toronto on 10 June 1985 and 21 and 29 November 1985. ity to present evidence and argument. As a result of these the Board issues the following award. On those occasions, the parties were given an opportun- Initially, the Union, in its opening statement, set out the nature of their claims in this matter. Thus, they indicated that at the time of the hearings the grievors were classified as Environmental Technicians 4, being the senior Environmental Officers in the west central area of the province. Both are long service employees. The Union noted that during the last ten years the work of the Ministry had evolved considerably, with increasing emphasis on the area of investigations and the like. Thus, the Union case was that while the classifications held by the grievors had not changed, that their job had altered from that of technicians doing, for example, air testing, sampling and mediating environmental complaints, to what is now one of a highly sophisticated investigational role in relation to a broad range of environmental issues. In this regard, they emphasized that the grievors were involved in the issuance of search warrants, summonses, the preparation of Crown briefs, the issuance of control orders against particular enterprises and extensive training under experienced police off- icers, to the point where techinicians act under their supervision in the investigation of environmental offenses. In short, the grievors no longer, in the opinion of the Union, are technicians, but rather have taken on a more sophisticated role. Consequently, they request a declaration that the grievors are improperly classified as Environmental Technicians 4s and an order that the Employer properly classify them, if necessary by creating -1- an appropriate classification, in which case the Board should remain seised of this matter to deal with that issue. Alternatively, upon a finding of improper classification, the Union requests reclassification on an atypical basis to the classification of Ontario Security Commission Investigator 2. Before turning to the evidence, it is helpful to note that the Employer takes the position that the Union case is incorrect and that the grievors are appropriately classified for the work they are doing. In their view, the standards applied properly reflect the duties generally done by the grievors and that the classification falls within the standard. Consequently, the Employer takes the view that there is no violation of the collective agreement in this matter. Accordingly, it is necessary to look first at the evidence in this matter The testimony in this matter cannot really be said to be in dispute. Only one witness was called: the grievor, A. E. Baldwin. It was agreed that his work was identical with that of the other grievor. The Employer called no witness to dispute the testimony of Baldwin. He gave his evidence in a clear, reasonable manner. He was credible. This Board sees no reason not to accept what he said as the truth. Thus, the position of Mr. Baldwin can be stated in rather brief terms. A lengthy analysis in these circum- stances does nothing especially in light of the Employer's argument. Mr. Baldwin is a graduate of George Brown College and, prior to his present employment, worked for some ten years in private industry. In 1969 he became an Air Pollution Inspector in the Air Management Branch of what later became the present Ministry of the Crown for which the grievors work. In 1974 he stated that there was a re-organization of his branch of the Ministry and the grievors became classified as Public Health Inspectors. This re-organization, insofar as it touches on this arbitration, resulted in an amalgamation of environmental disciplines to hopefully better deal with such problems. Mr. Baldwin expanded at length on the effect such change had on his employment. Essentially, his claim was that the subjects he dealt with -3- expanded greatly: from only dealing with air pollution to the full gamut of environmental problems. Again, he stated that the method by which problems were dealt with have changed: from emphasis on voluntary compliance the approach has become one of a prosecutorial nature with the attendant legal problems that such an approach necessarily raises. This, in terms of day- to-day work, put the grievors in the ro e of a prosecutor rather than someone who tested the environment. Finally, the response of persons with whom the grievors dealt changed: more and more confrontation was and is seen. It is unnecessary to discuss the specifics of this change. In practical terms it was undoubtedly an extreme change in degree in terms of what the grievors did on a day-to-day basis. Most people, undoubtedly an overwhelming majority, would conclude the job was so different in degree it became a change in kind. It was admitted by Mr. Baldwin, however, that in a general way the language of the grievors' "Position Specification and Class Allocation Form" (Exhibit III. Q) would cover what the grievors were doing both before and after the changes described occurred. For example, one of the eight points noted under the second heading of the "Summary of Duties and Respon- sibilities", which, as a general aspect, is to constitute some one-quarter of the former, reads: “.. .(P)reparing documentation and legal recommendations for legal actions such as prosecutions, control orders, court orders and search warrants." Mr. Baldwin indicates that such is capable of describing much of the new work he now does, even though the specifics with which he now deals are radically changed in both nature and quantum. Numbers of such examples were shown. Thus, this Exhibit literally covers the new work; but it is clearly misleading as to the reality of what is done. The Argument The argument of the Union can be stated as briefly as the facts. Thus, the thrust of their argument was first to review the above evidence. The point of this was to show that the job in issue had evolved to the degree that it could no longer be adequately covered by the Preamble to and the -4- Class Standard of the job of Environmental Technician 4 (Exhibit 111.0.). To this end, an extensive review of the evidence was undertaken. There was really no dispute by the Employer that such was not the case. This being the case, it was urged that the relief sought, as set out above, should be granted. The briefness of the foregoing is because of the position taken by the Employer. Basically, their argument is that the Union is basing its case on the relation of the facts to Class Standards. This, it is urged, is incorrect; the question, in the opinion of the Employer, is to see if the facts suggest that they are "caught" by the "Position Specification and Class Allocation Form", or, as it was termed, the "Job Specs." The Employer claims the Job Standard is beyond review by arbitration and, to this end, cites, among other authorities, Re OPSEU (Barnard) and the Crown in Right of Ontario (Ministry of Transportation and Communications), #372/82 (Samuels, 1982); Re OPSEU (Mulder) and the Crown in Right of Ontario (Ministry of the Environment), #595/82 (Verity, 1983); and Re OPSEU (Williamson) and the Crown in Right of Ontario (Ministry of Transportation and Communications), #153/81 & 184/81 (Samuels, 1986). In result, therefore, the Employer claims that the grievance should be dismissed. The Union, not unnaturally, responded that the foregoing position is incorrect. They claim the essence of these cases is that the Job Standard and not the Job Specification should be considered, stressing that the latter is a unilaterally created document as opposed to the former. They cite as support Re OPSEU (Garrard) and the Crown in Right of Ontario (Ministry of the Solicitor General), #521/81 (Jolliffe, 1982). Again, thereforce, they request the relief sought. Decision In our opinion, this grievance succeeds. It is our decision that the argument made by the Union is the correct one. After reviewing the cases cited by the Employer, it is our opinion that they do not support the result -5- \ urged by the Employer. An analysis of these convinces the present Board that it is appropriate to regard the Job Standards can be used as suggested by the Union; indeed, even if one looks to what was called the "Job Specs." there seems to be little support to the Employer's case. It was, in the classic sense, sophistry. One cannot use catch-all phrases, interred in minor parts of a document to support the case that such document can cover any job that such a minor clause can conceivably cover. We reject such a position entirely. Accordingly, we conclude that the job in question is improperly classified Therefore, the parties are obligated to rectify this situation. Initially, the parties are left to work this out; if they cannot do so, the Board retains jurisdiction to deal with this matter. DATED at Lynden, Ontario, this 10th day of April, 1987. \ E.E. Palmer, Q.C. Chairman H. Simon, Member G. Milley, Member