HomeMy WebLinkAbout1985-0881.Flood.88-06-24Between OPSEU (Kenneth Flood)
Before
IN THE ?dATTER OF AN ARBITRATION
Under
THE,CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
For the Griever
Griever
and
THE CROWN IN RIGHT OF ONTARIO
(Ministry of the Environment)
P. Knopf, Vice-Chairman
G. Nabi, Member
L. Turtle. Member
Cindy Wilkey
Mary Cornish
Laura Trachuk
Counsels
Cornish & Associates
Barristers and Solicitors
For the Employer: Joseph P. Glynn
Senior Personnel Representative
Personnel Operations
Ministry of Environment
Hearings: ' April 23, 1987
October 20, 1987
November 10, 1987
November 17, 1987
December 8. 1987
Employer
DECISION
This is a classification grievance. When the
grievance was filed in September 1985, the gri.evor,
Kenneth Flood, was classified as a Chemical Laboratory
Technician IV. Since then, in October 1986, he was
reclassified to the Scientist II level. But the grievance
seeks reclassification as a Scientist III. The evidence
in this case provided the Board with some interesting and
enlightening insights into environmental testing in this
Province.
The grievor’s work is in the area of water quality
moni toring. Since 1982, he has had the primary
responsibility for developing and applying a technique
designed to measure the lethal and sub-lethal effects of
acquatic contaminants on fish. The technique involved is
called “in-situ fish exposure testing”. This involves the
use of caged fish to study water quality at sites of
industrial or municipal effluents. By placing cages of
fish in different areas, the effects of varying degrees of
effluents on the fish are then determine3 through
labora tory testing .
The grievor’s responsibilities and du’ties in the
area of in-situ fish exposure programmes include assisting
the supervisor of the Bioassessment Unit with the
selection of programmes, studies and other activities that
the Unit will undertake. Be is also involved in the
devlopment of proposals for testing programmes, the
planning and preparation for field testing and the actual
conducting of the field test. He arranges and monitors
the necessary laboratory testing and then receives,
analyzes and interprets the data from the laboratory.
Thereafter, he prepares written reports. for internal and
-2-
5
external publication. Some of his reports are co-authored
with other members of the unit. Some are produced under
his name alone.
The grievor’s classification’at the time of the
grievance was Technician IV, Chemical Laboratory.
Attached to this award as Appendix 1 is the class
definition for this position. However, in October 1986,
the position was reallocated from the Technical Services
category to the the Scientist and Professional category as
a Scientist II. The class definitions for the Scientist
II and III are appended to this Award as Appendices 2 and
3 respectively . The evidence of the Employer was designed
to show that the reason for the reclassification was that
prior to October 1986, the Employer looked to the
grievor’s position for someone who could “assist” the
specialist by ‘a monitoring development position which is a
Scientist II. Further, because management recognized the
greater demands of the job as it evolved, management
claims it imposed a university degree requiremsnt upon the
position effective October 1986. Eence, the
reclassification.
The grievor’s evidence was that although the
office was reorganized just prior to October 1986, there
was no change in his duties or the expectations upon him
after the reorganization. Indeed, he claims his new
supervisor had little experience in in-situ testing thus
Mr. Flood had greater freedom and lack of supervision,
both directly and indirectly, after the reorganization.
The job specifications are important to this case.
In particular, as a Lab Technician IV wi-th the position
title of Technician, Biomoni toring Programmes, the
grievor’s job speciEication set out the purpose of his
position as follows:
.
To assist in the evaluation, development and
testing of acquatic biota as biomonitoring
tools for the assessment iif contaminants in
aquatic ecosys terns. To assist the section
branch and the region&l staff in the practical
application of biomoni toring techniques and
the interpretation of results generated
through their use.
The job specification continues by summarizing the duties and
responsibilities of the position which are all prefaced with
the phrase indicating that the technician “w_orks with the
specialist - Biomoni toring Development”. [emphasis added]
On the other hand, the Job SpeciEication for the
grievor’s present position of Biomonitoring Scientist sets
out the purpose of the position as:
To devleop, test and assess in-situ fish
exposures as a biomonitoring technique for the
evaluation of acute fish lethality and’
bioaccumulation of contaminants. To apply or
advise on the application of the technique in
support of branch or regional programmes. To
assist in the development, evaluation testing
and application of other acquatic biota as
biomonitoring tools for the assessment of
contaminants in aquatic systems.
The parties were of great assistance to the Board by
having their representatives prepare written submissions to
us. These submissions were invaluable regarding the
organization and analysis of the very complex evidence which
was put before us. In these written submissions, the parties
recbgnized that the proper classification of the grievor
depends on a number of factors which arise out of the class
definitions in the job s?ecif ications. We shall examine the
factual basis of these considerations in much the same way
that the oarties organized the analysis in their submissions.
(a) De=e of Supervision
There is no dispute over the fact that
the grievor receives direction from’his
unit supervisor, Mr. Wolfgang Scheider.
The grievor gets no day-to-day
supervision by anyone. Management
indicated that the intention it had for
the position was to have the grievor work
under the technical guidance of the
specialist. in Biomoni toring, being
Mr. Hayton. But the grievor seemed to
have concentrated on asgec ts of his job
which removed him from the scope of
Mr. Hayton’s work. Therefore, he got
little or no direct supervision from
Mr. Hayton. Also, the evidence of
management pointed out that the unit
supervisor is respons.ible to plan,
develop, supervise and evaluate the work
of his unit. This responsibility was
exercised with respect to the grievor.
On the other hand, management
acknowledges that the grievor possesses
the Ministry’s highest level of. expertise
in the area of in-situ fish exposures.
Thus, no one can provide him with
anything other than “reasonably
circumscribed” technical review of his
work. However, the grievor’s work, study
-4-
- 5 -
and reports are regularly reviewed
through a peer review process.
(5) SLpervision by the Grievo_l:
With regard to the supervision of
subordinate staff, the evidence shows
that the grievor has no permanent
supervisory responsibility. However,
while conducting his field studies, he
does direct a crew to ensure that the
proper scientific procedures are
followed.
(c) monsibility for Accuracy and
Reliabila -I_-
The class standards deal with the
responsibility to achieve accurate and
reliable scientific results. As one
would expec tr the greater the
responsibility, the higher the level.
The grievor claims that as the sole
Ministry specialist in this area, his
work is required to be and is relied upon
as the final authority in the area.
(d) Outside Contacts
The class standards also deal with levals
and kinds of outside contacts. Mr. Flood
testified about the many contacts he has
in his work with internal and external
groups including the private sector,
other governments, other provincial
ministries and other branches of his own
i _ - 6 -
Ministry. In all these contacts, the
grievor is accepted as the Ministry’s
expert in in-situ fish biomonitoring.
(e) Level of Compexi ty
One of the main areas of con tention
between the parties was their differing
assessment of the’ position’s level of
scientific and technical complexity. It
is to be remembered that the class
definition of Scientist II has the person
conducting “moderately complex tests,
analysis and examination”. However the
Scientist III classif ication describes
the person as conducting a “variety of
complex tests, analyses and
examinations”. The grievor’s evidence
stressed that the work he does involiles
the development of new study methods and
conducting tests for which he often has
had to create a new protocol. The
studies conducted by Mr. Flood and their
analysis do involve a number of difficult
factors, such ‘as determining the best
site, making allowances for the type of
effluent, determining the most
appropriate type and condition for the
test species and coping with varying
weather conditions. The Ministry’s case
stressed that the grievor’s work is
confined to one narrow area of testing,
i.e. the in-situ fish exposure. The
Employer asked this Board to contrast the
grievor’s work with the other scientists
in the department rated at Level 111
- 7 -
whose biomoni toring tests and analyses
are conducted in support of a broader
range of programmes and over a more
complex geographical area. However, it
also involves in-situ fish exposure.
(f) Degree of Independence
The principal thrust of the Union’s case
is that the Employer’s position fails to
credit or recognize the extent to which
the griever’s position involves “truly
independent scientiEic work”. It was
submitted that the grievor functions as a
“competent, independent scientist with a
high degree of final authority”. On the
other hand, the Union submitted that the
Scientist II and Technical Class series
failed to recognize this independent and
creative function of the g~rievor by
describing the pos’ition as one utilizing
“well established techniques and
procedures”. The griever’s evidenca was
that he bears almost sole responsibility
for making judgments and decisions
regarding protocol and procadures.
Further, he says he is regularly called
upon to apply his judgment and expertise,
initiative and originality to the in-situ
fish exposure testing. The Union claims
that the class standards characterization
of Scientist II as having “some latitude
for independent work” inadequately
credits the functions the grievor is
called upon to perform.
-0-
(g) Qualifications
As a Lab Technician IV, job standards do
not require a university degree.
However, the Scientist class series
require at least a university degree in
an appropriate scientific field. The
grievor claims that the work he has been
doing since 1982 with regard to the
testing, analysis, report writing and
consultation all require the background
provided by a university degree. The
Union claims that the fact that the
Employer now requires a university degree
for the position ought to be considered
as proof that the grievor was improperly
allocated to the technical series
previously.
(h) Change in Duties
The final aspect of evidence that should
be addressed is when, if ever, did the
griever’s duties change. The Union
claims that at all relevant times the
position should have been classified as a
Scientist III and that the best proof of
this was that the grievor was upgraded
after the grievance was filed. On the
other hand, the Employer claims that at
the time the grievance was filed the
position only required a technician to
assist in Biomonitoring projects in
support of the Ministry’s programmes.
While Mr. Flood may have taken it upon
-9-
himself to concentrate on more
“scientific matters” and ignore the
technical aspects of the position, the
Employer stressed that this does not
entitle the grievor to be reclassified.
The Employer’s evidence was offered to
establish that management developed a
need for a scientist to do the work
rather than to assist in the
biomonitoring. This change came aSout
with the reorganization of the office and
management structures. The grievor
claims his work has not changed in any
significant way over the relevant period.
The Decision
The thrust of the Union’s argument was that when
all the grievor’s duties are fully analyzed and
appreciated, his position should be recognized as ha,ving
i ts “best fit” within the Scientist III level of
classification. It was acknowledged that some aspects of
the class definition of a Scientist III may not apply.
But overall, we were urged to accept that the Scientist
III level is the best level available to describe the
Qrievor’s position.
We were very impressed with the level of expertise
and dedication that Mr. Flood brings to his work. His
supervisors acknowledged this as well. But the function
of this Board in a classif ication case is not to assess
the Qrievor’s potential or the quality of his performance.
Our task is to assess the job or position in question, not
the merits or the worth of the incumbent. See Pinqle and
Wolaniuk, Board Files 540/04, 1597/84 and 1598/84.
There is simply too much about the Scientist III
classification definition which does not “fit” the
Qrievor’s position. This makes it impossible for us to
agree that the Scientist III level is the “best fit”
available to the Qrievor. He does not conduct a “variety”
of complex tests. Instead, thouQh his tests may well be
fairly complicated, they are very restricted or limited in
nature and confined solely to the technique of in-situ
fish biomoni toring. He does no supervision of subordinate
scientists or technicians with regard to “analysis .of
moderate complexi ty” . He does not “select, use or adapt”
techniques in a supervisory capacity.
We readily admit to having difficulty with
determining the relative complexity of scientific methods
between the Qrievor’s work and others in his department.
We simply did not have enough evidence of the details of
other people’s jobs to be able to do so. However, the
parties and their counsel offered us a great deal of
appropriate evidence to assist us in determining the
question. However, a body such as this finds ‘it difficult
to educate itself sufficiently to make such an analysis
based on the evidence presented.
For tuna tely , the weight of the evidence in other
areas is sufficient that it does not impair our ability to
make a decision. This is so because the “characteristic
duties of a Scientist III” are not, as a whole, well
matched with the Qrievor’s duties. He does no formal
organization or teaching of formal courses for lab
technicians or supervision of junior scientists or
technicians. He does not conduct a “variety of complex
tests” or supervise subordinate scientists. While the
Qrievor is held responsible for the accuracy of his work,
his immediate supervisor is the one who is actually
responsible for his accuracy.
- 11 -
On the other hand, the Scientist II class
definition does appear to be “a good fit” with regard to
the core of the duties at the time of the grievance. The
grievor does work under “general supervision”. He has
some latitude for independent work decisions with regard
to his techniques. However, the setting of priorities and
the choice of projects is not done independently.. His
responsibility for accuracy and evaluation is exactly as
described in the class definition, as are his supervisory
functions and degree of supervision. The characteristic
duties of the Scientist II class standards are also
completely consistent with the work the Qrievor is called
upon to do.
Conclusion
We are convinced that the Qrievor is working at
levels beyond the expectation of the supervisors at times
and that inspired the grievance. This is understandable,
but it is not sufficient for us to allow it to succeed in
total. Because again, it is only~ the position that is
being analyzed in this case. It is not the Qrievor’s
performance in that position. Sut we do have enough
evidence to convince us that at all relevant times, the
grievor was working in the position of a Scientist II and
ought to have been recognized and paid as such.
We are in complete agreement with Mr. Flood’s
position as to when he should have been classified as a
Scientist II. The Employer’s position was that only a
change of the grievor’s job duties in January 1987 brought
about his reclassification from a Lab Technician IV to a
Scientist II. We see no evidence to substantiate that
claim. On the contrary, the evidence is overwhelming that
the grievor has been doing substantially the same job
since 1982 when he took on responsibility for in-situ fish
biomonitoring. In the spring of 1985, his actual
supervisor, Wolfgang Scheider, may have desired that the
grievor put more emphasis on the duties to assist the
specialist in biomoni toring. It appears that the grievor
did not put much or any emphasis on this aspect of the
job. He was never disciplined for that, al though it was
pointed out in an appraisal. But it is clear that the
Qrievor did fully perform the same scientific functions in
1985 as he was performing in January 1987 when the job was
in fact reclassified. Further, the functions were well
beyond the class standards for a Lab Technician IV because
these positions are “clearly directed by professional
aersonnel”. We are convinced that the Lab Technician
position was simply not appropriate to the work expected
of the grievor as at the time of the grievance because it
failed to recognize his independence and his expertise.
The Lab Technician position was simply not appropriate to
the work expected of the grievor as at the time of the
grievance. Therefore, the grievor should have been
classified as a Scientist II at the time of the grievance.
We direct that that reclassification be effective
immediately.
The Union seeks reclassification back to May 1985
because it was at that time that the ?linis try was given
notice of Mr. Flood’s intention to grieve his
classification. The Ministry’s response to the notice at
that time was to initiate the review of the position that
resulted in the Ministry reclassifying the position to a
Scientist II. But before that occurred, the Qrievance was
filed in Se;,tember 1985.
This Board wishes to do everything possible to
encourage parties to resolve matters on their own, without
resort to the arbitration process. If employees or the
- 13 -
Union believe that they might be prejudiced financially by
awaiting the Outcome of a job review before lodging a
grievance, grievances would be lodged in every conceivable
job classification dispute in order to protect
individuals’ positions. While many, if not most, might
ultimately be wi thdrawn, the sys tern would clog up and
precious resources would be wasted in unnecessary matters
if grievances were filed without people addressing or
considering the merits of the case. We are convinced that
the parties are better served by being encouraged to hold
off the filing of grievances pending attempts to settle
internal disputes. Thus, in a classification case, the
Qrievor would be entitled to retroactive relief from the
time that he made it known to the Employer that a
grievance may be launched unless the dispute is resolved.
On the facts of the case before us, the disagreement over
Mr. Flood’s job classification surfaced in March 1985.
This was followed by a series of correspondence. But in
May he indicated his intention to file a grievance over
his work. His supervisors then reviewed the job
descriptions over several months. However, as of May 29,.
1985, the Employer was clearly put on notice that the
grievance would be filed unless a satisfactory resolution
was achieved. In order to foster the attempt for speedy
resolution outside of the arbitration process, we conclude
it is appropriate to grant relief as of the time Mr. Flood
made his intentions known to management. This would be
May 29, 1985.
Therefore the grievance is allowed in part.
The
grievor is entitled’ to retroactive relief arising from his
reclassification from the position of Technician
Biomoni toring Programmes to Biomoni toring Scientist
effective May 29, 1985. The grievor is -entitled to the
differential in pay and benefits from what he received as
a Lab Technician IV while this grievance was pending.
The Board remains seized with any matters
regarding implementation should the need arise.
DATED at Toronto, Ontario this24th day of June
1988.
Paula Knopf Vice-Chairman
G. Nabi Member
) "
..~..- ]
-~ -$ ,.,,- ,<I' ' .,' .~ ,,
L. Turtle MemSer -
APPENDIX 1 16036
TXXNICLW 4. CX0UCX.L LWOR~TCRY
1 CUSS DJgFIXTION :
mployees in position allocated to this class supervise.a large
group of technicians hbo perform a variety of %ommonfl tests or super-
vise a number of technicians who perform %omplexu or “specialv’t tests
or a combination of the two. They are responsible for assigning and
scheduling the work performed by their subordinate staff and,for the
validity of the results obtained and they provide technical ‘&dance to
junior staff in each phase. They assist in compiling reports, keep
detailed records of test results,.-draw conclus,~qg.yl_pass, to..their._,
,supervisor for consideratiow They’are’usually responsible for the
control of all equipment and supplies used in the laboratory and the
requisitioning of additional supplies or equipment as required. In
addition to their normal supervisory function these employees usually
perform the unusually “complex” or 7’speciality-” tests or procedures;
setting up the special apparatus necessary, recording of procedures
followed and interim results,~anp_the..pr‘eparation of the test report;
and they are responsible for the reliability of the’results obtained.
In other positions these employees, as non-superv$spry_ spicidisrs,
perform difficult and demanding microsccpi;,’ spectrographic or other.-~-’
specialized and intricate e.xaminations to identify samples, to detetie
the presence of unstable or difficult,to isolate elenents, etc., where
the procedures followed and the tecbriiques employed require a sound
howledge of scientific methodoloc, and they’usuaJly provide an ,
,Qterpretation of the test resultzs obtained. -~They-‘have find%zpon-
sibilitg for the validity of ‘the resultswobtained and they may be
required, in some positions to appear in court as an e.xpert witness. ..,_. ..I... -- __
QIALIFICATIOXS :
1. Junior Xatriculation, including Grade 12 courses in rrarhematics
and a science, plus a minimum of ten years’ laboratory experience;
preferably completion of advanced training in a speciaked field
or a general advanced training course,
.&I acceptable combination of education, practical experience and
self teaching recowced by the Civil Service Commission as being
the equivalent.
2. Supervisory ability; analytical ability; integrity; keen pavers
of observation.
15544
APPENDIX 2
SCIWTIST 2
CLASS DEFINITION:
‘IKs class covers scientific work perfonaed under general supervision
in a provincial government laboratory. Employees conduct moderately complex
tests, analyses and examinations, with some latitude for independent work
decisions. They are responsible for producing accurate results, plan
rwhnical details of their own work, selecting, using, and adapting
appropriate techniques. Their work is evaluated by the accuracy and re-
liability of results, and may be reviewed on completion. These employqes
may supervise and instruct junior scientists and non-professionai staff.
General supervision is received from senior laboratory personnel.
(‘HARACT~ISTIC DUTIES :
Perform chemical laboratory tests,~ analyses and examinations, using a
variety of analytical techniques, methods and procedures.
Isolate and identify bacteria, fungi, virus and other micro-organisms;
prepare antigens , antisera and other reagents required for the identification
of micr+organisms; carry out sensitive bacteriological, serological and
viroloeical tests.
Participate in toxicological examinations and the isolation of chemical
substances: make histological, mycological and parasitological examinations:
analyx air pollutants and industrial materials related to occupational
health hazards or crop and property damage.
Investigate likely sources of error vhen test results seem unrealiable:
assist junior staff in resolving technical difficulties.
Participate in the operation of spc~trographic, spectrophotometric, x-ra\
diffraction and other apparatus as required: interpret and evaluate readings
and other data of moderate complexity.
Examine and analyze a variety of exhibits submitted by lax enforcement
agencies: appear in court as a scientific witness; may participate in the
instruction of police officers.regarding methods of forensic examination.
!!a~ participate in developmental work or special projects: on occasion,
may participate in field surveys.
!(a! supervise and assign duties to junior laboratory scientists and
technjcians.
Prcparr and verify reports; maintain necessary records; perform other
related duties as required. ~.
. . . . . ?
-2- 1.5544
I. A degree from a University of recognized standing as for the
Scientist 1 class, supplemented by at least two years of additional
acceptable laboratory experience.
Master’s degree in an appropriate scientific field, with at least
one year of subsequent acceptable laboratory experience.
2. Thorough knowledge of laboratory techniques and procedures; ability
to carry out moderately complex oral and written instructions; . .
ability to analyze, evaluate and logically interpret test results;
accuracy; good judgment.
Revised Julv 1965
Ii%
APPENDIX 2
SCIENTIST 3
CL\SS DEtlNITION:
This is responsible scientific work performed in a provincial
coverrvwnt laboratory. Employees personally conduct a variety of
complex tests, analyses and examinations, or they may 5ums.e a
group of subordinate scientists and technicians perfonaing a large
volume of stahdard analysis of moderate complexity. Scientists in
sunerviaorv,@ositions are responsible for the selection, use and ._ adaptation of appropriate techniques and procedures relating to the
work of their group, and are held responsible for the accuracy and
reliability of the tests and analysis performed. General supervision
is received from a senior laboratory scientist.
C:HRACTERlSTIC DUTIES :
Perform complex qualitative and quantitative laboratory tests,
analysis and examinations, using specialized analytical procedures,
often involving the skilled operation of complex and sensitive
apparatus and equipnent; evaluate and interpret spectrographic,
spectrophotometric, x-ray diffraction and other data.
Conduct specialized complex analytical and diagnostic studies, test5
and examinations in the field of bacteriology, biochemistry, chemistry,
toxicology, serology, virology, parasitology and mycology; analyze
toxic substances and air contaminants related to occupational health
hazards or crop and property damage.
Examine and identify mineralogical samples by microscopic,
spectrographic? x-ray diffraction or chemical techniques.
Esamine and analyze a wide variety of exhibits submitted by lag en-
t.orccment agencies ; appear in court as a fully aualified and ex-
perienced scientific witness; participate in the instruction of police
officers regarding the methods.and techniques of forensic examination.
Jreanizc and conduct formal training courses for laboratory technicians:
]&ture’on a variety of technical methods, techniques and procedures:
prepare lecture material: conduct and set examinations; mark examination
papers.
Supervise junior scientists and technicians performing standard tests and
, analysis: assign duties; regulate work flow; check test results and
ana’lytical reports; maintain discipline.
ran-Ticinate in developmental work or special projects; may undertake
field surveys.
Preparc periodic reports, makr recommendations, maintain neccssa? records
and supplies.
rcl-f’~,m other related duties as requiwd. I-
. . . . -
QUALI tXATIONS :
1.
2.
3.
A degree from a University of recognized standing as for the
Scientist 1 class; preferably Waster’s degree in the field -~
of specialization.
A minimum of five years of acceptable experience following
University graduation
an equivalent combination of post-graduate studies and
laboratory experience. .~
Thorough knowledge of laboratory methods, techniques and
procedures; ability to carry out complex scientific assignments:
ability to analyze, evaluate and interpret results of analytical
examinations and special studies; accuracy; good judgment.
NOTE:
Scientists holding doctorate degrees supplemented by
acceptable laboratory experience may be recruited in this class,
provided their duties and responsibilities will be commensurate
with the level of their academic qualifications and experience,
subject to the approval of the Civil Service Commission.
Revised Julv 1965