GSB #3164/92
OPSEU #93A387
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Knaap) Grievor
- and -
The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services) Employer
BEFORE: N. Dissanayake, Vice Chair
FOR THE GRIEVOR: Irit Kelman, Counsel, Ryder, Wright, Blair & Doyle, Barristers and Solicitors FOR THE EMPLOYER: Andrea Kuprejanov, Staff Relations Officer, Ministry of Correctional Services
HEARING: October 20, 2000.
Interim Award
Ms. Wendy Knaap filed the following grievance dated November 17, 1992 which is before the Board for determination: "I grieve that I am being improperly paid as a CO I, increment I as per the collective agreement". The settlement desired is: "That retroactive to November 12, 1991, I be paid at the CO I increment 2 rate and effective August 25, 1992 I be paid at the CO I middle rate retroactive to August 25, 1992."
At the commencement of the hearing the employer objected to the arbitrability of this grievance on two alternate grounds. First, that the union has fundamentally changed the nature of the grievance at arbitration. Second, that the grievance as framed at arbitration was in essence a classification grievance.
For purposes of this interim award, the parties agreed upon the following partial statement of facts;
On November 13, 1990, Ms. Wendy Knaap began her employment with the Ministry of Correctional Services at the Hamilton-Wentworth Detention Centre (HWDC). She was hired as an unclassified Correctional Officer (CO) and paid at the CO1 level 1 classification.
Ms. Knaap subsequently competed for a full-time classified CO position at the HWDC and won the competition.
On May 4, 1992, Ms. Knaap was appointed to the classified staff on a training underfill basis, and continued to be paid at the CO1 level 1 rate.
On April 29, 1992, W.B. Thomas, Regional Personnel Administrator, sent an appointment letter to Ms. Knaap. In that letter, Ms. Knaap was advised that 'reclassification to the CO2 may take effect November 25, 1992 subject to satisfactory service and completion of staff training courses." (Exhibit 1)
On November 17, 1992, Ms. Knaap filed the grievance that is before the Grievance Settlement Board today (GSB 3164/92).
On December 18, 1992, Ms. Knaap completed the required CO2 training.
Ms. Knaap's underfill status was removed retroactive to November 25, 1992. She was reclassified to the CO2 classification and paid at the CO2 level 1 rate on that date.
In accordance with the GSB Award on Union Policy Grievance 2426/90 and 2723/91, and the Memorandum of Understanding signed between OPSEU and the Ministry of Correctional Services dated September 22, 1995, the Ministry entered into a settlement with Ms. Knaap on July 29, 1996 to resolve the outstanding pay merit issue of her grievance dated November 17, 1992. (Exhibit 2, 3, and 4)
In compliance with the settlement entered into with Ms. Knaap dated July 29, 1996, she was awarded a merit increase from CO1 level 1 to CO1 level 2 retroactive to March 18, 1992. Given that the CO2 level 1 pays at a lower rate than the CO1 level 2, the Ministry also readjusted Ms. Knaap's wage rate from a CO2 level 1 to a CO2 level 2 retroactive to November 25, 1992, the date of her underfill removal
On February 23, 2000, Ms. Knaap's grievance GSB 3164/92 was mediated at the Grievance Settlement Board before Vice-Chair Dissanayake. The parties entered into a settlement in which they agreed to make a bona fide attempt to resolve the outstanding issues. (EXHIBIT 5)
On July 19, 2000, Irit Kelman, counsel for the union, sent a letter to Andrea Kuprejanov, counsel for the employer, which confirms that the Parties have been unable to successfully negotiate a settlement, outlines the union's and grievor's current position, and requests a number of documents. (Exhibit 6)
On August 14, 2000, Andrea Kuprejanov, counsel for the employer, sent a letter in response to Ms. Kelman's correspondence of July 19, 2000, which outlines the employer's position and provides some of the documents requested by the union. (Exhibit 7)
The outstanding issue in Ms. Knaap's grievance dated November 17, 1992 is her underfill removal date. The remedy sought is that her underfill removal be backdated from November 25, 1992 to August 25, 1992.
The settlement desired set out in the grievance has two aspects: (1) That the grievor be paid at the CO I increment 2 level effective November 12, 1992. (2) That the grievor be paid at the CO II middle rate retroactive to August 25, 1992. The union has agreed that the first aspect of the grievance has been resolved. Therefore, what remains outstanding is the second aspect. The grievor's request for payment at the CO II middle rate effective August 25, 1992, is based on a claim that effective that date, the grievor's underfill status should have been removed. The union alleges that the employer's policy relating to underfill removal was administered in an unfair, arbitrary and discriminatory manner, in that it gave local managers discretion in deciding the extent to which unclassified service is credited for purposes of removal of underfill status. As a result, different calculations were used in different institutions in administering the underfill removal policy. Some employees had their underfill status removed and received full benefits accorded to CO2, while other employees in identical situations did not have their underfill status removed until much later. This according to the union, undermined the employees' right to be paid in accordance with the wage rates set out in the collective agreement.
The employer takes the position that the union and the grievor only raised the pay increment issue in the grievance and that it was fully resolved. According to the employer, now 8 years later, the union was resurrecting the resolved grievance to make a completely new allegation relating to the employer's underfill removal policy. It is the employer's position that this issue was raised by the union for the first time when the parties appeared before the Board on February 22, 2000 for mediation. Employer counsel submits that the union was in effect attempting to change what was an individual grievance relating to pay increment (which was resolved) into a policy grievance attacking the employer's policy relating to underfill removal. She submits that the Board should hold that the union is not entitled to arbitrate a grievance so fundamentally changed from the one that was filed.
Alternatively, the employer takes the position that even if there was no fundamental change, nevertheless, the grievance is not arbitrable because it is in substance a classification grievance. The employer submits that as a result of the Sectoral Framework Agreement and Appendix executed and ratified by the parties in August 1993, and the enactment in 1995 of section 51 of the Crown Employees Collective Bargaining Act, classification grievances are no longer arbitrable.
DECISION
Having carefully considered the able submissions of both counsel, I have concluded that the employer's objection on the basis that the union's present claim in the grievance constitutes a classification grievance must be upheld. Accordingly I do not have to consider the employer's "change of grievance" argument.
I do not set out the sectoral agreement or S. 51 of the Crown Employees Collective Bargaining Act in full here, because the parties are in agreement that the effect of those provisions was to render classification grievances inarbitrable. The issue is whether the grievance presently before the Board is in substance a classification grievance.
As noted, the grievor has claimed that effective a certain date - August 25, 1992 - she should have been paid at the CO2 middle rate. This claim is based on her position that as of August 25, 1999, her underfill status should have been removed by the employer. Her underfill was removed only effective November 25, 1992. The Board has considered the issue of whether a grievance by a correctional officer claiming the right to removal of underfill status constitutes a classification grievance. Re Bishop, 1432/88 (Fisher) was a decision pre-dating the Sectoral Framework Agreement and the present S. 51 of the Crown Employees Collective Bargaining Act. There the issue was whether a grievance seeking the removal of an underfill assignment which entailed payment at the CO1 level while on probation and training in a CO2 position constituted a claim for upward reclassification to CO2. At p. 4 the Board concluded:
In effect the union is stating that once a CO1 has completed his training and probationary period, he is in fact performing the duties of a CO2 and should be paid accordingly. This is an ingenious and perhaps valid argument but in reality it is a classification grievance. The employee is in effect saying that he is performing a higher rated job and should be compensated accordingly.
Re Moore et al, 595/92; 2653/92 (Roberts) was a case very similar to the present one in that there the Board was called upon to decide whether a grievance claiming removal of the underfill status and payment of CO2 rates by certain correctional officers was a classification grievance rendered inarbitrable by the Sectoral Framework Agreement.
At p. 7 the Board held:
Accordingly, it must be concluded that during the period addressed in the grievances, the grievors were, in fact, classified in the classification of C.O.1. This means that their claims that they should have been paid as C.O.2's because they had completed their training and probation are classification grievances claiming reclassification to the C.O.2 level. As such, they are inarbitrable under the relevant provisions of the sectoral framework and local appendix, and I must decline jurisdiction.
The present case is indistinguishable from Re Moore. Here also the grievor is claiming payment of CO2 rates as of a certain point of time. That claim is based on an alleged right to have her underfill status removed as of that date. As the Board held in Re Moore, the grievor is in essence claiming that effective August 25, 1992, her position should have been classified as CO2.
Counsel for the union pointed out that in a typical classification grievance the Board would have to examine in detail the duties performed by the grievor, and compare those duties to the duties set out in the class standards. She correctly pointed out that such an exercise was not required in the present case. However, that does not lead to a conclusion that this was not a classification grievance. Here there was no need to get into a comparison of the grievor's duties with a class standard only because there was no dispute in that regard between the parties. The employer was not taking the position that the grievor was not performing duties contemplated in the CO2 class standard. The situation was the same in Re Moore where the parties had agreed inter alia, that 'the grievors were not restricted in their work assignments as Correctional officers in any way after appointment to the classified service". As a result, the Board there also did not have to compare the duties of the grievors with the class standards. However, that did not prevent the Board from concluding that a claim for CO2 pay rates on the grounds that the grievors' underfill status ought to have been removed at a specific time constituted a classification grievance.
Union counsel relied on three Board decisions, where the Board had held that the grievances before it were not in substance classification grievances. However, each of those cases turned on its own facts. None of them involved a claim for removal of underfill status. In Re Barker et al, 2476/92 (Kaplan) it was held that a grievance claiming that the grievors were improperly paid because the employer had selected an improper "equivalent" classification pursuant to article 3.3.1, (which was a distinct right unclassified employees had under the collective agreement) was not a classification grievance. In Re Courte/MacGregor, 1946/93; 206/94 (Roberts) and Re Theoret, 1674/93 (Roberts) it was held that grievances alleging improper payment in violation of article A of the Collective Agreement were in substance discrimination and human rights grievances and not classification grievances. Those decisions have no application to the present case.
For all of the above reasons, the Board finds that the present grievance is in substance a classification grievance in that it in effect requires the Board to conclude that the grievor ought to have been classified as CO2 at an earlier point of time. The Board has no jurisdiction to deal with such a grievance as a result of the Sectoral Framework Agreement and S. 51 of the Crown Employees Collective Bargaining Act. Accordingly the grievance is hereby dismissed.