Loading...
HomeMy WebLinkAbout1984-0540.Pingue and Wolaniuk.87-06-30BETYEEN: IN TNE UTTER OF AN ARBITBATION UNDER THE CEOUN EMPLOYEES COLLECTIVE BAllGAINING ACT BEPOBE THE GRIEVANCE SETTLEMENT BOARU BEFORE: FOB THE CBIEVOB: OPSEU (A. PinBue and J. Yolaniuk) - and - THE CROUN IN RIGHT OF ONTARIO (llinistry of the Environment) J. U. Samuels s. R. nennessy H. Roberts Vice-Chairman Member Nember 8. Wells Counsel Cowling and Henderson Barristers and Solicitors FOR THE EnPLmElI: c. s. Feeley - llmager Ministry of the Environment UEABINCS: December 16. 1986, April 0 and Nay 20. 1987 - Crievor Employer This is a classification case and an award which an quite unlike any o&r that has been dealt with by this Board. ‘lhe difference comes from the fact that the grievors’ jobs (their duties and responsibilities) cannot be described precisely, because the job itself will depend greatly on the abilities of the individual employee; and from the fact that by now the employer has conceded the grievors’ claims, but nonetheless this Board is issuing an extensive award All of this will be explained fully in what follows. The grievors are environmental officers. They were classified as Environmental Technician 3, and they said they were wrongly classified. When our hearings began in December 1986, they claimed that they should be classified as Securities Commission Investigator 1. However, their progress to SC1 1 would be accomplished in two stages. Before this panel of the Grievance Settlement Board, they would argue that they should be . classified as Environmental Technician 4. If this succeeded, then the parties agreed that the grievers would be treated in the same way as two of their colleagues, Messrs. Baldwin and Lyng. These latter two gentlemen were already classified as ET 4, and their grievances (in which they claimed SCI 1) had been heard by another panel of this Board, chaired by Mr. Palmer, in late 1985. The parties were still awaiting the award of the Palmer panel. If Baldwin and Lyng were successful, and were reclassified as SC1 1. then Pingue and Wolaniuk would follow to SC1 1 if they first made it to ET 4 in their case before us. We commenced by hearing the testimony of Mr. Pingue concerning his job. ‘Ihis took us through two days, December 16 and April 8. At the end of the day on April 8. we were looking fonvard to the testimony of at least three more Union witnesses, and two employer witnesses. Before parting company, the Board met with counsel for the Union and the employer’s representative and made various suggestions which might expedite our work. We were to reconvene for two days of hearings on May 20 and 21. Between April 8 and May 20. there were two developments. c (‘ 3 Firstly, on April 10, the Palmer panel released its award in Baldwin and Lyhg, 539/84. The panel concluded that the grievors were improperly cl@fied and that “the parties are obligated to rectify this situation” (at page 5). Ini&xUy, the parties are left to work this out; and if they cannot do so, the Board retains jurisdiction to deal with the matter. So it is not yet clear what will be the classification of Messrs. Baldwin and Lyng, but they were found to be improperly classified as ET 4. Secondly, the night before we were to reconvene on May 20, the employer’s representative was instructed to inform us that the grievers were . . to be granted what they requested, y&hs!&preludtce to or co ncession to the m ‘v y ene antes of other environmental officers who allege t hat the mimDroDerlv After discussions between counsel for the Union and the employer’s representative, and discussions between the parties and-. this panel, we adjourned on the following basis: -the grievors would be reclassified as Environmental Technician 4, retroactive to November 19, 1984, pending the final resolution of the Baldwin and Lyng grievances. --when Baldwin and Lyng are fmally reclassified, Messrs. Pingue and Wolar&k will be reclassified to the same classification as Baldwin ,, and Lyng. (We note that in their grievances claiming reclassification to SC1 1, dated March 16 and 20,1984, the grievors ask for “full retroactivity”. The precise meaning of this is not clear, in light of the agreement reached before we adjourned. J& . . . . . . wtll rem our IU&&~IQU to deal with anv matter of compensation t be worked out bv the oarties themselves.) --the Board would record these events in an award, and would also make some comment on the case, based on the evidence it had heard already. The purpose of these comments would be to offer some guidance to the patties on dealing with this type of case, given that we learned that there are well over a hundred more grievances from other environmental officers who claim they are impropertv classified. Because we did not hear ah the witnesses which the parties planned to all, and we heard no argument at all, we will confine our remarks to some general comments which seem evident from the testimony of Mr. Pingue, and a careful reading of the documents submitted in evidence. It must be stressed that we did not make a formal finding concerning the classification of Messrs. Pique and Wolaniuk. and that we have no jurisdiction over any other grievances. Furthermore, the employer’s position with respect to Messrs. Pique and Wohiti does not prejudice its position with respect to any other environmental officers who have grieved that they are improperly classified. However, them are well over a hundmd outstanding classification grievances from environmental officers, and, in our view, in these circuMtanc.es the parties would be well served by some general comments, In Ontario, the Environmenrul Prohmion Act provides legislative control over activities which may endanger the natural environment. The primary focus of the Act is the prevention of the introduction of “contaminants” (which are very broadly defined) into the natural environmenr. Section 2 says that “The purpose of this Act is to provide for the protection and conservation of the natural environment”. In order to , accomplish this purpose, the Minister and his designates are given wide powers. For example, under section 3, they may (c) conduct studies of .thc qutity of the ~rmnl CC% mnmcot, mercorobgi&l itudk. and m~aitotig Pmplmr; 5 (d) conduct studies of environmental plqdng designed to lead to the wise use of the natural environment by man; (e) convene conferences and conduct seminars and edu- cational and training programs relating to contami- nants, pollution, waste and litter; (r) gather, publish and disseminate information relating to contaminants, pollution. waste and liner; (8) make grants and loans for, (i) research or the training of pcnons relating to contaminants, pollution, waste or litter, and (ii) the development of waste management faciti- ties. in such amounts and upon such terms and condi- tions as the regulations may prescribe; (h) establish and operate demonstration and experi- mental waste management systems, litter disposal sites and sewage systems under Part VII; (i) appoint committees to perform such advisory func- tions as the Minister considers advisable; and C (i) with the appmval of the Lieutenant Governor in Coqcil, enter into an agreement with any govcm- mcnt or person relating to the ~mtection or conser- vadon of the natural environment. Under section 6, when a provincial offker reports that a contaminant is being discharged into the natural environment, the Director may issue a control order to any person to prohibit the discharge of contaminak. Under section 7, when the Director has reasonable and probable grounds to believe that the’discharge of a contaminant poses arrimmediate danger to human life, the health of any persons, or to property, the Director may issue a stop order closing down an operation. Under section 8, it is provided that no person shall construct something which may discharge a contaminant into the natural environment, or alier a production process with the result that a contaminant is discharged into rhe natural environment, unless he has first obtained a certificate of approval issued by the Director for the construction or alteration. Under section 9, the Director may issue program approvals to persons who are responsible for a source of a contaminant and who submit a program to prevent or reduce the emission. Under section 16. the Minister may order the repair of any land, water, property or plant life which is damaged by the discharge of a contaminant into the natural environment. Under section 146. an offender may be prosecuted for failing to comply with any provision of the Act. And these are only examples of a whole catalogue of administrative and enforcement tools put in the hands of the Minister and his designates. - The point of it all is to protect and conserve the natural environment by preventing the introdaction of contaminants. The Ministry’s response to each harmful situation will depend on many factors---the nature of the contaminant, the record and character of the person or source of the contaminant, the circumstances of the natural environment into which the - contaminant is being introduced, and so on. ‘There is a great deal of judgment which goes into the decision on how to deal with each particular situation. Now, turning to Mr. Pingue and his role in all of this as an environmental officer. He was stationed in Welland. serving the South Niagara section of the Ministry’s West Central Region. The Purpose of his Position, according to his position specification, was to identify and describe sources of pollution in industrial, municipal, agricultural, commercial, and private facilities in the District, assist in the implementation of abatement programs, maintain good liaison with the general public and client groups, monitor sources of pollution, including municipal utilities, and enforce environmental legislation. 7 He is in the front line of the Ministry’s attack on the introduction of contaminants into the n&u-al environm&t. He must discover and monitor the source_~ of pollution. He must assist in abatement programs. He must enforce environmental legislation. The position specification sets out in detail the duties atid ‘responsibilities which flow from this general statement of the purpose of his position. This Summary reads: 1. Xdmtify and describe aource~ of pollution (awimma~ td contednante) ad urlst in tb iqllumtuiua of dument prograM at indwtriAl, mlmicipel, agricultural, comaerclal private rourcae by pufondq ruch dutiar l 81 33x - inv~~tigothp md avaluufng complainta &out pollution; - coaducting murca l urvaya ad invwtigatione, vbich aey include obtainisq proceee - deecrlptione, calculating matubl end/or energy beluuee, collecting eemplar ti’~ uuuriag noLo, opacity and odourr; - prepering fospection/obrarvation, sPireion eurvey end Section 126 reports which wJdd include meking appropriate recomadatiow; - reviewing abatement requiremama AUI nagotioting control uchedular vitb clfante; - coneulting vitb Supwhor. 2. llmitor l ourcee for comp+nce vith end enforce euviromental legielatfon by performing l ch dutlu aa: 30x - viaftlng cllmta regularly to inspect pollution control frUith8 for propar LutaU.Uioa aad operetion, meure corpplknca vitb program, ordere. ad Wtd legfdatfoa aucb u XPA, OUU and all r&vat reguletime; - roviov upset conditfoaa to dater&m emua and mourn corrective action is being takm to minia&* recurrence; - lnspactlon of weate maagmmt situ and eyetaut; - docvmntinp in nita to meintein filee 4 coofkn diecurrione with cliants; - obtahing data to uint~ia immtoriaa and inputing to KDP eyotaa; - iulag &aoa Rqubu~, Violuion xoticu, and sluimlu; praprbg docummtuion md rmdatiana for 1ege.l action euch ee proeecutioae, emtrel ordue md eeerch vurantr; Vwiwr md provfde l8forutina en uta aA uetmta trwwt tecilitiv -I - bpietfng fuilitiu to ucutdn lmval of operetlen u it reletu to ktfnistry polLcIu. progru, procdurw, and Cutifiut~ of Apprwrl requlfmente; - luadlias informstim rquuta for utflith ragudhg procam, deaf@, data UC.; - urura suitability of l ludge utllhetloe program by rito ad eat- fnepaction, rmlmrlag l ppliatiau cad prepuing docwtetlon vlth racdationa; - laputing utility informatIon to BIP l yrta 2. Puform other dutiu m&h ~2 ravhflng and caopating on bppltutioau for vuioua approvalr inchdint Certifiutu of Approval and CoqlIaws and laud UI* propoeelr l uch ee official plenr and pfau of rubdivldioo, sonlw cbaqu, roa ammdmenta and by-l- ruimm; lkisin~ uith public, municipalitiar, climt groupr, ma udk. other . daiatrhr and govumnm, t agmciar to prwide or obtain informetion; : : l ttmdin~ et end giving edvice regudlng spill@, in coaeultetion uith Duty Officer aa tIme/neod permite; Miatrly advirIag mpuvimr of potmtkll7 contaitiour Imme and rqpslul7 dlmuaa activities in uu vhicb rill be tollvd by writtm rapotto; providing l rrirtanca to Eealth tInnit rmguding Part VII l ctivitiar; preparing corrupondaw such a fntormatioo reports, trhuiesl memoranda, - lettern, minutrr of maetingr and routine iwprtlon rwortab uaiating in tb davolopmt of XDP ePetae; urigd. The critical point which is apparent from a reading of this Summary of Duties and Responsibihties is that this is a job which will necessarily grow with the incumbent. ‘lie environmental officer will perform this job at a level which depends on his abilities and experience. For example, if an officer is called fo a spill, he ‘may be able to deal with the situation entirely on his own because he is the person who has all the expertise needed to handle it. He may wind up directing the operations of the fire departments and police departments and other agencies which are called to respond to the situation. Or, if the environmental officer is less experienced, he may have to call in other employees of this Ministry, or from other agencies, to assist in determining what has been spilled and what will be the consequences to the natural environment and what has to be done to prevent or. reduce the damage. I ~~ Or, to take another example, if there is a contaminant being introduced into the Ratural environment, the environmental officer’s response will depend on his individual expertise and experience. He will have to determine the method of identification of the contaminant, the appropriate administrative or enforcement tool to use. In particular, if it is decided that a control order should be issued, the environmental officer will prepare the draft order. Or if it is decided that a program approval would be appropriate, the officer may be involved in the development of the program with the person responsible for the introduction of the contaminant. There is so much scope for individual initiative, and there may be an enormous variance in the way in which the job is performed by different ’ ’ officers. It simply isn’t possible to set down in a policy or manual how one should respond to a spill. Every spill is different---a different substance, a different polluter, a different natural environment. And it isn’t possible to set down with much precision how best to deal with any particular source of contamination---it will depend on the type of contaminant, on the record and character of the polluter (is this the type of person with whom it is possible to work out a program? or will this person respond only to prosecution?), on the particuIar narural environment into which the contaminant is being introduced. Necessarily, the level at which the officer does his job will depend on his abilities and expertise. - This does make the job of classification very difficult. Generally, this Board has made it clear that it is the job which is classified, not the incumbent An incumbent may be over-qualified for the job, but this does not make any difference to the classification. It is what you are required to do which matters, not what you are capable of doing. But in this case, the general rule does not work. This is a job with a very flexible top end. The environmental officer is called upon to deal with contamination. The job may be very complex, it may involve a great deal of responsibility, it may - involve a great deal of judgment---it all depends on whether the particular ” officer is capable of doing the job at a very complex level, or is capable of undertaking a great deal of responsibility, or has the ability and experience to exercise a great deal of judgment. The Class Standards for Environmental Technician 3 and 4 are attached to this award. The Palmer panel of this Board, in Boldwin and Lyng, 539184, has already commented on the inadequacy of these standards once the environmental officers were given major responsibility in the area of enforcement. As h4r. Palmer said, at page 3, “This, in terms of day-to-&y work, put the grievers in the role of a “prosecutor” rather than someone who tested the environment”. The reader will note that the standard for Environmental Technician 3 commences “This class covers positions’ - involving inspections and investigations........” It is clear that now’ environmental officers have significant responsibility beyond inspections and investigations. They are now required to take an active part in responding to the findings of their inspections and investigations, It will not always be a matter of prosecution, because there is a wide range of administrative and - enforcement machinery which may be brought to bear on any particular situation. But’ whatever is done, the environmental officer will be significantly involved in much more than merely finding and monitoring the contamination. We would go on to point out the difficulty of defming precisely the grievers’ jobs in a way which will necessarily lead to classification at the 3 or 4 level in the existing standards. The critical difference between the 3 and 4 is the generalist nature of the 3’s job, and the “technically complex and specialized” nature of the 4’s work The ET 4s “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.......~ they exercise advanced nsponsibilities across a range of several areas in the environmental and pollution control field.....“. It occurs to us, after looking at these standards, and after hearing 11 several days of testimony from Mr. Pique, that some environmental officers will work at the 4 level because they are in fact the recognized experts in a specialized field. Some officers will function at the higher level by virtue of their expertise and experience. Indeed. in the classification of these employees, it may be that great emphasis will have to be put on the level of their education and experience, because the level of education and experience will have a great bearing on the actual level of the individual’s job. We did not hear all the evidence concerning Mr. Pique’s work (the employer had not yet called its witnesses), and we heard almost nothing about Mr. W&niuk’s work (he had not yet been called as a witness), so we will say very little about their particular situations. But it is worth noting that Mr. Pique has been with the Ministry since June 1973. He came to the Ministry ‘.’ .. with a degree from Ryerson Polytechnical Institute in Public Health Inspection and Environmental Sciences. Since joining the Ministry, he has taken a host of courses and seminars at University, offered by the Ministry, and elsewhere. He has had wide experience with the Ministry in various positions. His primary expertise is in microbiological organisms found in sewage and water. Our remarks are done. We hope that they will offer some assistance to the parties in resolving the many grievances still outstanding concerning the classification of other environmental officers. Fiiy, we must say a word about the work of the Ministry and its environmental offtcers. We are leaming more and more each day about the terrible cost of.pollution. ‘In the long term, irreversible environmental degradation may be the most serious problem faced by mankind. At the international, national, provincial and local levels, we are beginning to respond to the perils in ways which may prevent the collapse of our ecosystems. There really can be no more fundamental role of government than “the protection and conservation of the natural environment”. This Ministry and its officers are performing critical work. We were much impressed with the little we learned about this work from the testimony of Done at London, Ontario, this 30th &y of June ,1987. Mr. Pingue. And as citizens of this province, we arc very grateful for their service. SU\ -..-tiee-_.-.&_i S. R. Hennessy, Member u-)p&- H. Roberts, Member CL?& STANDARDI 61404 atwI~wwEwTNl TFcnN1cIAN 3 This class covers positions involving inspections ud invas~~gatione pf the full range of activities in the enukonmsntal‘~ assessment and pdlution Gontrol field. In Io=a po=klons, they conduct investigations Of ~lh,t&,LDtAk (stationary and mabile sources), or water, including noise, ard p&+n.‘organize and conduct assessment J,.end. surveys and monitoring of the nkural environment. Others in the environmental monitoring function involve responsibility for the selection, _ operation and Mintenance of specialized, complex electronic, chemical or IrShaniCal Sir, water or WSStSwSteZ mnitoring equipment in field locations resulting in the production of validated data for use in environmental assessment proqrames. In.still other positi&, ekployees in this classification may assist professional stiff or senior technicians in the clean up of hasardous spills, oc in conducting applied research projects or,sumeys to evaluate new technology and methods, assess the naturdl environment, effect corrective action in the case of malfunctioning pollution control equipment, or in the processing of approvals. The - compmsebla factors at this level ere typically reflected as follows: : 1. Xnovladge: Wo?k~~requirss the technical expertise, approaches and practices to deal effectively with a wide variety of m+wironvantal matters such as inspection of newly installed ox malfunctioning privats sewage disposal systems of all sizes (e.g. serving schools, nursing ties, etc.), industrial air.& water pollution control and monitoring equipment, consauna water and sewage treatnent projects, waste management sites and systems, and vehicle emissions to ensure that they comply with established practices and standsrds, or to qualitatively assess the effectsSot polluting discharges on the surrounding environment (e.g. determine wastevater loading guidelines for municipal/industrial discharges). Such bmxledge is normally acipired through graduation from a lrecognired institute of ,'. technology or cossaunity college plus several years of related experience. . 2. Judgement: Work 1s performed under,minimum supervision wi.th considarable functional independence. nature~judqement is exercised in decis.iowmaJLing whya unusual or unpredictable situatipty arise. nattezs deviating frame established practices and preckdent’s are dealt with at. this level and only sensitive or contentious matters are refeired to supemisor,s. Independent judgment ii areroised in the preparation of caapiehensive techniCal reports on all investiga+ks, inspWdons or other projects, including the interpretation and analysis of physical and field data atid laiwratxy resUltS, m&in9 rcccmaeudations where necessary. (OVER) -2- 3. These position8 are +amnuble for the accuracy and complateaess of ths data collected awl of the lnvestigationa or inspections oonductd. Decisions bvolve the nature and amaunt of daa to ba collected, actiona t&an, re commdations made, and can uamlly be based on precedent or established practice. Errors may cause inappropriate action and expense by the Ministry, industry, or private individuals. 4. Contactsr Contectr 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 contact8 will k to exchange or collect information a&data, give advice, make recoamendstions or enforce regulations. On occasion, it 8ay be necessary to ~appear as a witness providing technical evidence and/or infomation before public bodies such as environmantal hearingr, municipal councils, ratepayers’ associations, or courts of lav. In all contacts the l sployse is assumed to officially reprment the Hinistry and present blinistq policy. . April 1975 CL?& STANDlUtDr 61406 WRONMENTAL TEChNICIAN 4 This class aoveqs positions of employees involved in conducting and eycrdinating technically complex ahd specialLed work in environmental assessment end pollution control. They either function ax recognised experts in specialieed 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 spills of hazardous materials, investigating fish kills. or conducting studies of the natural envlrcnw% etc., E they exercise advanced responsibilities across a range of several areas in the environmental and pollution control field, functioning as group leaders providing technical direction, cc-ordination and training to other technical staff,, including instructing in technical training prcgrawnes. The compensable factors at this level are typically reflected as follows: 1. Knowledge: :,: Work requires the technical expertise, flexibility and depth of background to deal 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. Judqement: Work is performed under general direction. Judgement is tiployed to marshal the necessary human; material and/or information resources and to organize studies, surveys, investigations ox 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. AcccunLability: These positions are fully accountable fer the technical accuracy and quality of data colledted or produced and for c-prehensive technical reports with reconsssndaticns,~ as a result of their decision on necessary information; format and content of reports1 and appropriateness Of reconrmendations. Such reports arp 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 Ministry’s credibility and prestige. . . (OVER) 4. con+actsr I. , work involvee l wide veriety of contfnuing cont~cte vith goverraental and industrial officiels at ths ..I ,. operatlonrl, technical, profe8sio~l and mnageaent hvels euch u Chief Cperrtore or suprrintendent.a of r water and sewage treament plente, induatrisl plant superintendents, technical, sciurtffic end engineering officblr of their mm Mhistry, other Provinciti Ministries, the Government of Canada end international aganois8. The amtacts are :for the purpose of exchanging informtion, giving edvice, publishing interpretative data, Uing rccomendetions, planning co-operative etudfee, or enforcing regulations. It may he necessary occasionally to sppeer as e witness or technical expert before public hearings, such as the EnVirOIaQentAl Hearing Board, or e court of lav. In all contacts, the employee is assumed to officially represent the Uiniotry es en expert, end to present Winistry policy. .- .