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HomeMy WebLinkAbout1985-0124.Ting.87-03-27IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Ores Ting) - And - The Crown in Right of Ontario (Ministry a!, the Environment) BEFORE: R. L. Verity, Q.C. Vice-Chairman S. J. Dunkley Member I. J. Cowan Member For the Grievor: R. Wells ClXJlEel Gowling & Henderson Barristers & Solicitors For the Employer: R. Younger Staff Relations Advisor Staff Relations/Safety Ministry of the Environment Hearings: February 20, 1986 May 26, 1986 May 27, 1986 Grievor Employer -2 - DECISION In November, 1963, the Ministry initiated a major reorganization in the Laboratory Services Branch at Rexdale, Ontario by the creation of a new section - The Drinking Water Organic Section. The issue in this matter is whether within the context of that reorganization, the Employer improperly posted the position of Senior Chromatography Technician in the Organic water Unit. On March 11, 1985, Mrs. Ores Ting filed two sepa,rate grievances which arose from the posting. One grievance (G.S.B. #125/85) alleged that she had been unfairly denied a promotion toes the position of Technician 4 as advertised in Competition #EN-6/T. At the Hearing that grievance was withdrawn by the Union. The remaining grievance (G.S.B. #124/85) alleged that the posting was held in contravention of Articles 4 and 5 of the Collective Agreement, and improperly required the Grievor to compete for her own job. Patrick Crazier, one of two successful applicants for the competition attended throughout the proceedings. He was accorded full third party status on the understanding that he was the only ,* -3 - employee who could be, adversely affected by the result. In addition, Mr. Crozier was called as a witness by the Employer The material facts are not in dispute. Mrs. Ting became a permanent Ministry employee in 1979, although she had served as a contract employee since 1976. From 1979 to 1983, Mrs. Ting worked as a Chemical Laboratory Technician 3 in the Pesticide Section of she the Ministry's Laboratory Services Branch. In that capacity, performed a range of high pressure liquid chromatographic and chromatographic services for the analysis of herbicides, pest and other polar organics in environmental samples. icides In November, 1983, the Grievor was advised that she would be assigned to the newly created section, namely the Drinking Water Organic Section. The section was further subdivided into an Organic Water Unit, a Priority Pollutants Unit, and a Dioxin Unit. Personnel for the new section was conscripted from various Ministry Sections including pesticide; water quality, ,waste water treatment, inorganic trace contaminents and 'organic trace contaminents. Mrs. Helle Tosine was appointed Manager of the section, and Dr. David Hall was appointed Supervisor of the Organic Water 1 Unit. In January, 1984, the Grievor was assigned to duties in the Organic Water Un transitional per During that time i i t. January, February and March, 1984 was a od for the purpose of organization of the‘unit. the Grievor assisted Dr. Hall in acquiring the i . -4 - laboratory glassware, equipment, chemicals and other miscellaneous items required. By April 1984 the Organic Water Unit was operational. Dr. Hall established a comprehensive timetable for the years 1984 - 1985 for the introduction of various sophisticated analysis methods. In May 1984, Mrs. Tosine prepared a written document (Exhibit 12) which outlined the basic responsibilities and briefs job descriptions for designated employees in both the Organic Water 'Unit and the Priority Pollutants Unit. The duties for employees in the Organ ic Water Unit were described as follows: " b ) c) Ores Ting: - performs instrumental .ana,lysis of prepared extracts by capillary GC by setting up,, calibrating and operating capillary GC/data systems; - performing QA/QC procedures by maintaining calibration curves and response tables; - interprets chromatograms and tabulates data for supervisor; - maintains updated file of expenses for OWU by entering into Apple III program for output by D. Hall; - document methodology used in detail for review by D. Hall; Kim Ngo, Tony Duarte, Roseanne Mallette, (student) Prepare samples for 0. Ting by: i - 5 - - ensuring clean glassware is available - preparing reagents, sol.utions and packings for extraction - extracting samples - concentrating extract and applying column clean-up - ensuring work area is maintained in a clean and orderly,condition - LIS as required by supervisor" A copy of Exhibit 12 was given to the Grievor and to the other employees listed. To implement the Ministry's Goals and Objectives for the new section, Mrs. Tosine prepared Sob Specification and Class Allocation Forms for all positions in each Unit. Subsequently on January 7,‘1985, Mrs. Tosine prepared the. Position Specification and Class' Allocation Form for Senior Technician in the O~rganic ' Water Unit. That Position Specification and Class Allocation Form reads as follows: "Purp0s.e of Position To technically lead the work of technicians within the. Organic Water Unit & to carry out complex analyses. To evaluate & improve techniques and/or equipment. Summary of Duties and Responsibilities 1. Performs technical duties with the Organic Water Unit by: - having a full working knowledge of all equipment in the unit and ensuring proper operating techniques are applied; - providing guidance to subordinates to ensure that correct routine analytical and record keeping procedures are followed; 50% -6 - - providing guidance to subordinates to ensure that correct quality control proce.dures are followed; - daily auditing quality control data generated by subordinates and initiating corrective action if required;~ - reviewing results generated in the unit to determine accuracy of testing; requesting confirmation of results in cases of obvious discrepancies; - auditing results on final reports produced by the Organic Water Unit generating repeats as required, approving submissions; - evaluating mathematical results and advising supervisor of observations and conclusions prior to informing originator; - ensuring that non-routine calibration of instrumentation is personally conducted; - ensuring application of safety procedures and stopping action when unsafe procedures are followed; referring to attention of supervisor with suggestions for corrective action; - referring to supervisor in cases where pr.oblems a're unsolvable; - advising supervisor if existing methods are inadequate to meet needs of, unit and carrying out evaluation as directed by supervisor. 2. Performs instrumental analysis of@ prepared extracts by computerized 40% capillary gas chromatography or gas chromatrographylmass spectrometry to evaluate & improve existing methods & techniques by: - setting up, calibrating and operating gas chromatographic data system equipment using a variety of detectors (ECD, FID, NPO); - evaluating GC/DS or GS/MS/DS conditions for the specific function of optimal separation and quantitation of herbicides & pesticides in aqueous samples: -recommending changes in GC/OS or GC/MS/DS procedures to Supervisor for optimal analysis of any new pollutants. -setting up apparatus and equipment, i . -7 - assigning the routine developmental testing to subordinates; checking operation of equipment periodically to ensure proper functioning; making adjustments as required; - interpreting complex chromatograms, verifing data and performing other quality control checks by making calibration curves calculating results, insuring the maintenance of records of analyses, test & other experiments through a Daily Work Record and by ensuring these results are entered into a computer data base; and writing reports on quality assur'ance methodology changes or improvements for the supervisor's review; 3. Carries out administrative duties 10% associated with the Organic Water Unit by performing such tasks as: - ensuring adequate training of all Unit staff; - recommending to Supervisor staff moves to suit individual capabilities; - maintaining complete and up-to-date written procedur~es for each test at each workstation in the unit, and a file copy for section reference; _- maintaining records of retired procedures for reference; - preparing and collating quality control information, maintaining quality control summary records for each test in the unit; - preparing and collating productivity information; - preparing requisitions for laboratory equipment up to Sl.OO.00; - preparing reports on utilization of chemicals, stock-keeping, and chemical waste disposal; - as assigned. Skills and-Knowledge Required to Perform the Work Many years experience working in a chemical residue lab including specifically sample handling & manipulative skills needed to work with microlitre quantities of sample; -a - thorough knowledge of. analytical chemistry & instrumental techniques (CC/OS and HPLC) or acceptable combination of education & experience ; experience in group leadership of technical staff; good verbal & writing skills; ability to interpret & report data from complex gas chromatograms. I Have Classified This Position in Accordance with the.Civil Service Commission Classification Standards for the Following Reasons: Provides group leadership to assigned technicians in the analyses of herbicides, pesticides, P.C.B.'s and other organic pollutants by column chromatography, gas chromatography or high performance liquid chromatography. Performs the more complex analyses in the lab.oratory by interpreting complex chromatograms and the analysis of prepared extracts by capillary gas chromatography or GS/MS. Compiles reports and keeps detailed records of test results and makes recommendations to supervisor re: changes in GC/DS or GC/MS/DS procedures for optional analysis of any new ,ication form, the Ministry , 1985, the following posting pollutants;" Following that job specif posted the position. On 3anuary 25 appeared : “Senior Chromatography Technicians (2) (Technician 4) Chemical Laboratory Schedule 3 Salary $470.12 - $532.52/wk. (under review) Restricted to Ministry of the Environment Laboratory Services Branch Employees Required by the Organic Water Unit & Priority Pollutants Unit in the Drinking Water Organics Section. To analyse priority -9 - pollutants such as volatiles, PCBs, pesticides and EPA designated basic, .neutral, acidic extractables in drinking, surface and ground waters by instructing technicians on appropriate sample extraction, concentration, clean-up and fractionation by methods .such as column chromatography. In.terpreting complex chromatograms, verifying data and performing other quality control checks by setting up, calibrating and operating gas chromatographic data system equipment using a variety of detectors (ECD, FID, NPD); evaluating GC/DS conditions for the specific function of optimal separation and quantitation of volatile organics, basic, neutral and acidic organics and organics such as PCB, herbicides, pesticides in aqueous samples. Carrying out method development under the direction of the Supervisor for analytical methods for the characterization of a new range of pollutants in drinking water. LOCATION: 125 Resources Road, Rexdale QUALIFICATIONS: Many years experience working in a chemi.cal residue lab including specifically sample handling and mani.pulative skills needed to wor~k with microlitre quantities of ~samples; thorough knowledge of analytical chemistry and instrumental techniques (GC/DS and HPLC) or acceptable combination of education and experience; experience in group leadership of technical staff; good verbal and writing skills; ability to interpret and report data from complex gas chromatograms. Less qualified applicants may be considered at a lower starting salary. PLEASE RETURN APPLICATION TO: Competition File No. .EN-6/T Ministry of.the Environment Human Resources & Personnel Development Rranch 40 St. Clair Ave. W., 6th Flr. Toronto, Ontario M4V 1M2 CLOSING DATE: January 25, 1986" ,. i - 10 - The Grievor applied for the position, but was unsuccessful. The two successful applicants were Patrick Crozier and Brian Kruschell. At the time of the competition, Mrs. Ting, Patrick Crazier and Brian Kruschell were all classified as Chemical Laboratory Technicians 3. Mr. Crozier became Senior Technician in the Organic Water Unit. tha On February 26, 1985, Mrs. Ting received correspondence ,t she was not successful in the compet i tion and on March 1, 1985, she received a memorandum that she would be effecti've April 1 to Patrick Crazier’s former.pos Organic Section. ition in the Trace transferred The Union called two witnesses. The Grievor testified . that the job she h,ad perf'ormed between April, 1984 and Sanuary, I 1985 was the job that was advertised in the posting. Brian Kruschell, one of the successful applicants in the competition, testified in support of the Grievor’s contention. He did acknowledge that the complexity of the sample taking procedures increased subsequent to the competition, and that unlike the Organic Water Unit, the Priority Pollutants Unit had not been the subject of major change. The Employer called three witnesses. Mrs. Helle Tosine, Manager of the Drinking Water Organic Unit, gave evidence regarding - 11 - the general organization of the Section and her responsibilities in preparing Position Specifications and classifying each position as the needs of the Section crystalized with the passage of time. She acknowledged that in April 1984, a preliminary classification review by Ministry personnel Chromatography T.echnician in that the incumbent be classi concluded the Organ i fied as a T that the Sen c Water Unit echnician 4. ior would require In cross-examination, Mr. Tosine acknowledged that the Grievor and Rrian Kruschell were the only incumbents in the Section that were required to compete for new positions. Dr. David Hall, Supervisor of the Organic Water Unit and the Grievor’s immediate Supervisor, was the key witness for the Employer. The Grievor had worked under the supervision of Dr, Hall for some 8 months prior to the competition in January, 1985. .TThe thrust of Dr. Hall's evidence was that the Senior Technician in the Organic Water Unit required an incumbent at a level above the Grievor’s responsibilities. He testified that he encouraged the Grievor to exercise technical supervision, but that for the most part she had failed ~to assume those responsibilities. testified that the Grievor had acquired proficiency in four test groups (organ0 chlorines). In his opinion, Further, he .one of the the Grievor had not acquired proficiency in "approval of submissions" or "sample tracking", and as a result he had to assume that responsibility. In sum, Dr. Hall testified that the Grievor, although encouraged to do so, did not perform at the level of a -12- ' Technician 4, either because she was unable orunwilling to do so. In Dr. Hall's opinion, the Grievor was performing her job "quite adequately" at the Technician 3 level. Patrick Crozier posit ion of Senior Chroma Unit and was reclassified testified that he was awarded the ography Technician in the Water Organic as a Technician 4. The Union argued that the Grievor was functioning as the Senior Technician in the Unit prior to the competition,. and that in the circumstances there was no vacancy or no new position created which would have justified a posting under Article 4. Mr. Wells argued that there was a reclassification of the Grievor's duties and responsibilities which did not require a posting. The Employer contended that the Grievor was placed in a temporary assignment when the new section was'established. Mr. Younger argued that a new position was created which required a posting following receipt of the Position Specification and Class Allocation Form in question. The Board does not accept the,Employer's argument that the Grievor was assigned to duties on a temporary basis in the Water Organic Unit. There is simply no evidence that Mrs. Ting was appointed to a temporary assignment. .?. i - 13 - The Grievor was given certain responsibilities in the Organic Water Unit which were reduced to writing in general terms in April of 1984 following the three months organizational period. Those initial duties were set 0 u t in Exhibit 12. The Board is satisfied that the need 'for the Grievor’s position changed during the ensuing 8 months and accord i ngly it was not until January of 1985 that the duties of the pos i tion finally crystalized in a Position Specification and Class Allocation Form. The Board is satisfied that the Position Specification prepared in January of 1985 was a new position which differed in material respects from-the duties previously performed by the Grievor. Those differences involved substantial supervisory responsibilities and some administrative responsibilities. We cannot agree that the Grievor's duties as set out in Exhibit 12 are identical to the duties described in Exh'ibit 4. While the duties may be described as similar, the differences are substantial. Accordingly, we find that the Employer was obliged to conduct a competition by posting the position of Senior Technician pursuant to the provisions of Article 4. We are unable to find that there has been any violation by the Employer of the provLsions of either Article 4 or 5. Undoubtedly, this grievance arises from the fact that the Grievor was one of only two employees in the Section required to ii... i - 14 - enter a competition. There is of course, no issue before this panel that the Employer erred .in its failure to post other positions within th,e Section, if in fact they were new positions. Accordingly, this grievance is dismissed. DATED at Brantford, Ontario, this 27th day of March, A.D., 1907’. - Vice-Chairman 5. 3. Dunkley - Member ‘-iLr_& 1.3. Cowan - Member