GSB # 1062/98 OPSEU # 98B496

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Barnier et al)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Finance)

Employer

BEFORE Randi H. Abramsky Vice Chair

FOR THE Mary Mackinnon

GRIEVOR Bode & Mackinnon Barristers & Solicitors

FOR THE John Cocker, Counsel

EMPLOYER Lucy Siraco, Counsel

Legal Services Branch

Management Board Secretariat

HEARING January 14, 1998, April 26, 1999, May 25, 2000, May 26, 2000

Plus a written submission by the Employer on July 4, 2000.

AWARD

The grievors, all senior Assessment Field Officers (AFOs) with the Ministry of Finance, allege that they were improperly denied acting pay while performing the duties of a Neighborhood Functional Assessor (NFAs) for the period of January 1, 1998 through December 31, 1998. The relevant contractual provision is Article 8.1.1 which states as follows:

ARTICLE 8 – TEMPORARY ASSIGNMENTS

8.1.1 Where an employee is assigned temporarily to perform the duties of a position in a classification with a higher salary maximum for a period in excess of five (5) consecutive working days, he or she shall be paid acting pay from the day he or she commenced to perform the duties of the higher classification in accordance with the next higher rate in the higher classification, provided that where such a change results in an increase of less than three percent (3%), he or she shall receive the next higher salary rate again.

Facts

Until January 1, 1999, the assessment of farm, residential, commercial and industrial property for municipal taxation had been performed by employees of the Ministry of Finance. After that date, the function was divested to the Ontario Property Assessment Commission (OPAC). The grievances in this matter involve the one-year period before that divestment occurred.

At the time the grievances in this matter were filed in April 1998, the grievors were all AFOs in the London region, under the direction of the Assessment Commissioner, London. The purpose of the office was to produce an assessment roll for all classes of property in the region which would be used by the various municipalities for taxation purposes. The London region included some 210,000 properties in Elgin, Oxford and Middlesex counties, including the City of London.

The region was divided into four valuation sections: The City of London, Residential; the City of London, Commercial and Industrial; Oxford and part of Elgin Counties, all properties; Middlesex and part of Elgin Counties, all properties. Each section was headed by a Valuation Manager, and included two Senior Property Assessors, a number of NFAs and AFOs, and Valuation Assistants who were hired on a contract basis. The Senior Property Assessors, NFAs and AFOs were all part of the bargaining unit. Since at least 1997, both NFAs and AFOs were assigned to specific neighborhoods within a section.

In 1996-97, as a result of the “Who Does What” review, the provincial government undertook a major revision of property assessment in Ontario, with the goal of bringing all properties to a similar valuation date: June 30, 1996. To that end, there were a significant number of administrative and legal changes to the Assessment Act, with 1998 being the first year of the changes. All properties had to be assessed to determine their value as of June 30, 1996.

A new review process was also initiated. The first step, which is optional, involves a request for reconsideration by the taxpayer, which is an informal review between the taxpayer and the assessor. If the matter is not resolved then, a formal review before the Assessment Review Board (ARB) may be requested. Before this, there was no request for reconsideration and a valuation, if appealed, went directly to the ARB, and then to the Ontario Municipal Board. Neither the AFO or NFA position specifications were amended to reflect this change.

Assessment Commissioner Smith stated that at this time - late 1997 and early 1998 - the “reassessment pressures were profound.” Also at this time, the region lost approximately ten NFAs due to a variety of reasons, including resignations, transfers, health issues and early retirement incentives. The record is not clear as to the percentage this number represents, or the total number of NFAs, but it was clearly a significant number. Most of these NFA positions were not posted nor were the positions permanently filled.

As a result of a grievance in the early 1990s, the NFA salary was substantially increased. The position of AFO was created shortly thereafter to bring more employees into the field at a lesser cost than an NFA. Assessment Commissioner Smith, who was involved in the creation of the position, testified that the AFO job was a “junior position” to value the more numerous residential and farm properties which were considered easier and less complex than multi-residential, commercial and industrial properties. Of the 210,000 properties in the region, approximately 185,000 are residential or farm properties. Of the commercial/industrial properties, the majority are in the City of London, with some in St. Thomas and Woodstock. The NFAs, who were highly paid, were to value the complex properties and defend valuations on appeal, although the AFOs could assist them. The AFO position replaced the Data Collection Officer position, which was a clerical job involving data collection, not valuation.

The position specification for the AFO job lists the following as its “purpose”:

To assist neighbourhood/functional assessors in the field and office in the areas of: data collection and maintenance; customer service and the provision of assessment information to the public, valuation of residential and farm properties and calculation of assessed value of a variety of other properties.

The “Duties and related tasks” were listed as follows:

1. Participates in assessment data collection functions by:

• reviewing property assessment and related records such as appraisal cards, the OASYS file, building permits, property deeds and plans etc. to familiarize self with taxpayers’ property.

• investigating market data such as M.L.S. listings, newspapers etc.;

• acquiring and maintaining a record of property sales, rental income and expenses for income producing properties and cost data;

• re-inspecting the interior/exterior of properties and structures to verify the accuracy of or identify changes to be made to paper or electronic assessment records;

• performing routine property inspections of new structures or changes to existing structures identified from building permits, assessment confirmation forms, field observations etc.;

• measuring properties and structures to verify accuracy of or identify changes to be made to assessment records

• calculating and converting metric measurements to imperial measurements on plans etc.

• recording changes and updating assessment records from information compiled during field visits etc.;

• consulting Manager or Senior Property Assessor for technical advice on unresolved or non-routine problems.

2. Assists with data maintenance functions by:

• Sales – reviewing all sales documents, determining nature of transaction, coding as to suitability for sales analysis purposes based on Division guidelines, entering sales data and ownership changes in electronic and paper assessment records;

• Supplementary – obtaining building permits, preparing field documents, visiting properties and recording details of construction; updating relevant paper and electronic files and records, reviewing supplementary notices for accuracy before forwarding to owners;

• Appeals – visiting properties to confirm the accuracy of property assessment data and denoting changes in support of appeals, updating records resulting from the decisions of the Assessment Review Board or higher.

3. Provides information services to the public by:

• answering routine inquiries from the public providing property details or Assessment Division information by telephone, letter, or in person and participating in “Open House” activities.

4. Calculates the assessed value of residential and/or farm properties by:

• checking appraisal/property cards and notes compiled during field visits to ensure all necessary information is available, such as building characteristics and dimensions etc., and using hand-held computer equipment to compile records and general property values in the field;

• preparing scale outlines of building, showing dimension and other information as required;

• referring to data on appraisal cards/property records and appropriate costing manual to calculate basic value of structures;

• applying established depreciation and obsolescence tables and local modifiers to buildings, adding land values from established tables and applying established adjustment factors to determine total property values;

• entering data into computer data bases and using appropriate manuals or automated techniques to determine property values;

• preparing data required by the appropriate neighbourhood/functional assessor to permit him/her to review and defend the assessment of residential and farm properties which have been appealed to the Assessment Review Board or the Ontario Municipal Board;

• consulting the appropriate neighbourhood/functional assessor for technical advice on unresolved or non-routine problems.

5. Assists neighbourhood/functional assessors in calculating the assessed value of multi-residential, commercial and industrial properties by performing such tasks as:

• checking appraisal/property cards and notes compiled during field visits or provided by neighbourhood/functional assessor to ensure necessary information is available such as building characteristics and dimensions etc., and requesting missing information from the neighborhood/functional assessor responsible for compiling the data

• preparing outline to scale indicating respective floor size, basement, etc. according to colour codes and information provided;

• referring to data on appraisal/property cards and appropriate costing manual to calculate basic value of structures;

• applying established depreciation and local modifier to building, and adding land value to determine total property value;

• forwarding completed appraisal/property cards to the appropriate neighbourhhood/functional assessor for review and confirmation.

6. Performs other duties such as:

• maintaining various manual and automated office statistical records (e.g., affidavits, omitted/supplementary assessments) required for monthly M.B.R., and management reports by recording/inputting data, checking accuracy and retrieving data;

• Assisting in special projects and performing other assignments in support of the assessment function as required.

According to Valuation Commissioner Smith, AFOs are fully involved in the appeals/reconsideration process except for appearing before the ARB. They may review the valuation, re-inspect the property, re-analyze the information and come to a value conclusion with respect to residential and farm properties for which they are held accountable. For commercial and industrial properties, they may work up an initial valuation, but their valuation must be reviewed and they are not responsible for it. They also cannot represent the Assessment Commissioner before the ARB, which was referred to by the parties as going to or doing “courts”. This was done, in his view, “purposefully” because it requires experience.

The NFA, according to Smith, is able to carry out valuations on all types of properties, including commercial and industrial properties, even though some do not do so due to the types of properties in their areas. They also defend those valuations on appeal. He referred to them as “working level assessors” able to “deal with anything that comes along.” He stated that they work independently, come to their own conclusions on valuation and are required to defend them. The NFA, he testified, does all of what an AFO does independently, plus appear before the ARB. He acknowledged, however, that not all NFAs appear “in court” or assess commercial and industrial properties, but unlike AFOs, they may be required to do so.

The NFA position specification states that the purpose of the job is to “perform the valuation associated with a neighbourhood and to provide reassessment and market value for all properties in that neighbourhood.” The “summary of duties and responsibilities” states:

1. Performs a variety of data collection functions necessary to support neighbourhood assessments by engaging in such tasks as:

• acquiring and maintaining a record of all property sales, rental, income and expenses for income producing properties, within assigned neighbourhood;

• investigating other sources of market data such as M.L.S. listings, newspapers;

• reinspecting the interior and the exterior of all properties in the neighbourhood to collect changed property and structural data;

• performing property inspections required due to changes in property (additions, demolitions, etc.) or as required for tax audits and succession valuations.

2. Performs the on-going valuation of properties within assigned neighbourhood by undertaking such tasks as:

• placing market values on all properties within the assigned neighbourhood using at least one of the recognized valuation methods;

Comparative Sales Approach - …

Cost Approach - …

Income Approach - …

• preparing, once every assessment cycle, documentation containing a description of the neighbourhood jurisdiction, sales history, lease and income data history, market influences, the results of analysis and in evaluation of quality in terms of accuracy and equity;

• defending the assessment of any property in the assigned neighbourhood at any judicial level;

• to provide assistance in neighbourhoods other than own should the need arise.

3. Performs a variety of data maintenance functions by engaging in such tasks as:

• Sales – analysing and updating all sales information within assigned neighbourhood, determining nature of transaction, coding as to suitability for sales analysis purposes, entering ownership changes and sales data, apportioning the property value and amending appraisal card and file record (for splits only);

• Supplementary Assessments – obtaining building permits, preparing field documents, visiting the property and recording details of construction, determining value changes, updating relevant computer files and records, and reviewing Supplementary Notices before they are forwarded to owners;

• Tax Adjustments 636(a) – recording and investigating demolitions and business tax adjustments, visiting the property and verifying the change, recording the detail of any new occupant;

• Appeals – updating records resulting form the decisions of the Assessment Review Court or higher;

• Apportioning values for multi-occupancy properties for school support, voting privileges, business assessment purposes;

4. Performs administrative and communications functions necessary to support the neighbourhood assessment concept such as:

• establishing and adhering to a Bi-weekly work plan within the terms of the general regional office schedule;

• supervising the activities of enumerators in the neighbourhood, verifying and editing their work;

• participating in open houses to discuss valuations made with ratepayers;

• meeting with Council members, town clerks, as required to explain market value reassessments;

• responding to enquiries regarding property details made by the public, municipal officials, tax agents, and others as assigned.

Based on the position specifications, there appears to be significant overlap between the AFO and NFA positions in terms of data collection and data maintenance functions. There is also some overlap, to a more limited degree, in terms of valuation of property. The NFA places market value “on all properties within the assigned neighbourhood” while the AFO “calculates the assessed value of residential and/or farm properties” and “assists” the NFA “in calculating the assessed value of multi-residential, commercial and industrial properties.” In addition, the NFA is responsible for “defend[ing] the assessment of any property in the assigned neighbourhood at any judicial level.”

William Somerville, who, from 1995 until 1999 was a Senior Property Assessor, City of London, in the Commercial/Industrial Section, testified that in 1997-98, he oversaw the activities of NFAs, AFOs and Valuation Assistants. With NFAs, he would provide guidance as requested and advice on valuations, assist in the preparation of appeals and, in complex appeals, attend ARB hearings with them. With the AFOs, he would assign them work, check the work they did and provide assistance as required. He testified that one of the grievors, James Stata, did not make independent assessments on new commercial or industrial properties but reviewed them with an NFA or Senior Assessor. He estimated that on average, in his section, NFAs spent 30 to 40 days at hearings per year.

The Employer also called Karen Russell, who, in 1997-98 was a Senior Property Assessor in the City of London, Commercial/Industrial Section. In her view, the distinction between AFOs and NFAs is that NFAs are accountable and responsible for the final valuation on commercial and industrial properties and to defend those valuations before a tribunal. The AFO, she stated, had more of assisting role, data collection and field work, versus the NFA who would spend more time in the office, analyzing and preparing final valuation work.

Ms. Russell testified that e-mails pertaining to property assessment appeals were sent to all assessment staff involved in the process, including AFO James Stata. She testified that Stata discussed appeals directly with tax agents, but consulted with her both before and after those discussions.

Ms. Russell also explained an e-mail to all staff in the London Commercial/Industrial Section dated April 27, 1998, regarding “Process Controls”. The e-mail states, in pertinent part, as follows:

EFFECTIVE IMMEDIATELY ALL ASSESSORS-AFO’S-VA’S, INPUT WILL BE FORWARDED TO THE SENIOR ASSESSORS FOR VERIFICAITON & AUTHORIZATION PRIOR TO KEYING (THEIR (SIC) IS AN INPUT BOX SPECIFICALLY FOR THIS PURPOSE). THIS INCLUDES BUT IS NOT LIMITED TO: SUPPS, VALUE CHANGES, PARTITIONING, PORTIONING, APPEALS, ETC. ETC.

CLERKS WILL NOT KEY INPUT NOT INITIALLED & PLEASE DO NOT KEY YOUR OWN WITHOUT HAVING GONE THROUGH THE PROCESS.

Ms. Russell testified that this memo was issued near the close of the roll, which was around May 1, to control the changes that could be made to the roll and limit the possibility of “cross-foot” errors (whereby the value of the parts of a property did not equal the whole). For this period of time, changes to the roll had to be processed through a Senior Property Assessor. At all other times, however, NFAs could independently change valuations on any property and AFOs could do so on residential and farm properties but had to consult with an NFA or Senior Assessor on commercial and industrial properties. Ms. Russell’s testimony on this e-mail was consistent with the testimony of both Mr. Smith and Mr. Somerville.

Five of the 13 grievors in this matter testified and the parties agreed that their testimony, with the exception of the extent that they performed commercial/industrial valuations, would be representative of all of the grievors. Their testimony is summarized below.

Jay Garton

Mr. Garton began working for the Ministry of Finance as a Data Collection Officer in 1989, and subsequently became an AFO. His duties as an AFO, at first, involved collecting data on single family residential properties in London which he would pass on to an NFA who had the final say regarding the valuation. Over time, however, his own valuations were reviewed less and less, until not at all.

In 1997, shortly after the retirement of NFA Weldon Westlake, he received an acting assignment as an NFA for three months, from September to December 1997 in Middlesex County. During that time, he spent “a week or two doing courts” and he went to the properties to re-inspect, ensure the data was correct and attempt to settle with the ratepayer. This work, except for the courts, was similar to the duties he performed before the acting assignment. Likewise, after his acting assignment, his duties did not change, except for courts. He testified that he performed valuations for farm, residential, commercial and industrial properties, although he acknowledged that he submitted his valuations on commercial and industrial properties for review by the Senior Assessor. At times, he testified, they were reviewed; at other times, they were not. He also received inquiries from various municipalities directly.

Beginning in January 1998, with the new legislation, he participated in the reconsideration process. He stated that it was “basically the same” as preparing for the ARB hearings.

In his view, throughout 1998, he was no longer performing the AFO job since he was not “assisting” an NFA but doing everything that the NFAs were doing except attend court. He was doing commercial, industrial and residential reconsiderations, negotiating directly with the taxpayer. All of his settlements were signed off by the Valuation Manager, as were those of NFAs.

Jennifer Reid

Ms. Reid started in 1975 as a Data Collection Officer then became an AFO. She was assigned to neighbourhoods beginning in the spring of 1996. Before that, she provided general assistance to NFAs. In 1997, she received an acting NFA assignment during which she spent a lot of time preparing for courts and did all of the residential courts in the area. In her view, the preparation work she performed during the acting assignment was the same as she did as an AFO and the “major difference” was that she “appeared before the Tribunal.” She “wouldn’t say it changed a whole lot.” After the acting assignment, the only difference in her job was that she did not appear before the tribunal. Mainly, she did reassessments and requests for reconsideration. In 1998, when there again were court dates, she was given another acting assignment from June through October. She testified that she did between ten to twelve commercial or industrial assessments in 1998, a number of which involved reconsiderations. Some were prior to the acting assignment, some were during it and some were after the acting assignment and only some were reviewed by Senior Property Assessor Paul Legg. She testified that “in theory”, commercial and industrial properties were to be valuated by NFA Rick Enns, but in reality, she did them.

Linda Liotti

Ms. Liotti began with the Ministry in 1990, and became an acting AFO in 1996 and in 1997, became a regular AFO.

In 1998, she was involved in helping develop a new multiple regression analysis to valuate residential properties. With others, she helped to develop software to facilitate reassessment, creating a formula to value residential property. In her view, because of the program, she was no longer “assisting” but performing valuations.

Ms. Liotti acknowledged that a Senior Assessor reviewed any commercial valuations in which she was involved and she did not attend courts in 1998.

Sherriann Wadley

Ms. Wadley began with the Ministry in 1988, became a Data Collection Officer in 1990, and in 1993, was reclassified as an AFO. She was assigned to the City of London, Residential Section, focussing on condominiums. Her job was to assist NFA Lonnie Harloff. In August 1997, Harloff left and she took over the assessment responsibilities on an acting basis. She testified that before this acting assignment, she was not accountable for the values nor required to defend them; that was Harloff’s job. During the acting assignment, she was accountable and attended courts to defend the assessments. The acting assignment ended in December 1997, but she testified that her duties did not change except she did not attend courts. Instead, in 1998, she was heavily involved in reassessments and reconsiderations. She stated that before 1998, she participated in preparing for ARB hearings only in a “minimal” way, meaning that she prepared spreadsheets for the NFA’s use; she would not speak or negotiate directly with the taxpayer. She received another acting assignment from June 1, 1998 to October 30, 1998 in order to attend courts. In her view, in 1998, she was no longer assisting an NFA, but was performing the duties of an NFA and was accountable for the area. She acknowledged, however, that in 1998 she assisted Bob Lee, an NFA, with multi-residential properties and that she did not valuate commercial or industrial properties. She testified that in the City of London, Residential Section there were NFAs who did not valuate commercial or industrial properties.

James Stata

Mr. Stata was employed with the Ministry since 1990, first as a Data Collection Officer, then as an AFO. After NFA Donna Stevens left the office in 1997, he received an acting assignment as an NFA from August 1, 1997 through December 31, 1997. During this acting assignment, he attended ARB hearings and performed a land analysis, “typical NFA duties.” During this period, he was assigned to the City of London, Commercial/Industrial section. After the acting assignment, he stated that there was no change in his duties except that he did not attend court. He was actively involved in requests for reconsideration and met with tax agents to discuss properties. He was sent e-mails sent to staff dealing with appeals. In his view, throughout 1998, he was treated the same as an NFA in terms of review. He testified that the AFO position specification “underemphasizes the level of independence I had.” To say that he “assisted” was, in his view, a “gross understatement.” He had his own neighbourhood in a functional area – commercial. In his view, the term “calculation” implies no judgement when he determined property values, subject to review. Further, the inspections he performed were not routine since the buildings were older commercial buildings, each of which varied. In addition, he met with city hall staff and responded to their inquiries.

According to the grievors, when the acting assignments ended in 1997 but the work did not change, they brought up the situation with management. In January 1998, a meeting was held between the AFOs and Mr. Smith, regarding “Acting AFO Positions”, the purpose of which was to discuss the AFOs’ “short and long term prospects for moving to PA3’s [NFAs].” At that meeting, according to Mr. Stata, Mr. Smith acknowledged that there had not been any NFA competitions for some time and that he would attempt to rectify that situation. In addition, according to Mr. Garton, a number of AFOs had spoken to their managers about acting NFA assignment and were told that at times, it would be possible. By April 1998, when no changes were forthcoming, the grievances were filed. According to Mr. Stata, by April, the grievors’ patience had run out and the instant grievances were filed.

The Stage 2 response by the Employer, dated October 14, 1998, states in pertinent part as follows:

As the Deputy Minister’s designee, I am replying to the grievance which you filed on April 22, 1998, alleging that you have been improperly paid for doing the duties of a Neighbourhood/Functional Assessor.

I understand your position to be that you have been performing the full duties of a Neighbourhood/Functional Assessor and, therefore, should receive acting pay to cover any period between January 1, 1998 to present, that was not covered by a temporary assignment to an Assessor position. The job specification for your Assessment Field Officer position at a PA2 level indicates that your role is one of assisting. The job specification for the Assessor position at a Neighbourhood/Functional Assessor level clear shows that there are different responsibilities. The main difference is that a Neighbourhood/Functional Assessor can attend court, whereas you cannot carry out this function as a PA2.

It is my position that you have been properly paid while working in your home base position and that there has been no violation of the Collective agreement. Your grievance is, therefore, denied.

Positions of the Parties

The Union asserts that the grievors were improperly denied acting pay throughout 1998 when they performed the same work of NFAs but received significantly less pay. It asserts that given the legislative changes that had occurred, the huge demand for reassessments and reconsideration’s, and the simultaneous drop in the number of NFAs in the region, the AFOs were assigned to neighbourhoods and to perform duties previously performed by NFAs. They no longer assisted the NFAs as set out in the Position Specification, but actually did their work. In the Union’s view, the grievors performed the same work as the NFAs in preparing for ARB hearings, negotiating with taxpayers but only received “acting pay” when scheduled for courts. Yet, it submits, the evidence showed that some NFAs also did not attend court and yet received the higher pay throughout the year. Further, it argues that, at most, attendance at court represents only a small portion of an NFA’s job. As a result, the Union argues that simply because the AFO was not in court does not mean that they were not doing the same work as an NFA. This was done, in the Union’s view, to avoid posting the NFA jobs. Instead, it contends that the Employer had the AFOs perform their work yet reaped the financial advantage of paying the grievors significantly less.

The Union submits that the Employer should not be allowed to argue that the grievors did not perform independent commercial and industrial valuations since that was not raised in its Stage 2 response to the grievances. It contends that the Employer should not be allowed to change the grounds of its defense from the Stage 2 proceeding. Alternatively, it contends that some of the grievors did perform commercial/industrial assessments and that some NFAs, depending on the area assigned, also did not perform commercial/industrial valuations.

The Union also argues that the evidence demonstrates that the grievors were performing their valuations independently. Although they were submitted for review, it argues that there was no evidence that review actually took place. Further, it submits that the same type of review occurred for NFA valuations.

The Union also submits that any relief should be retroactive to January 1, 1998 because of the attempts the grievors made to resolve the issues and the response of management to be patient. Under these circumstances, the Union contends that the grievors’ delay in filing the grievances until April should not be held against them. In support of this position, the Union cites to OPSEU (Bauder et al.) and Ministry of Health, GSB No. 2198/90 (Gray).

The Employer submits that, in reality, the grievances are actually classification grievances over which the GSB no longer has jurisdiction. Union’s position is that after 1997, the grievors responsibilities have been altered to include some of the duties of the NFA position – not for a week or two but for a full year. It notes that the December 31,1998 end-date is the date of divestiture to OPAC, or presumably the alleged breach would be ongoing. This demonstrates, in its submission, that what occurred was not a “temporary assignment” within the meaning of Article 8.1.1 but a classification issue over which the Board has no jurisdiction. In support of its position, Employer cites to Re OPSEU (Oyston) and Ministry of Transportation, GSB No. 2149/86; OPSEU (Rosamond) and Ministry of Citizenship, Culture & Recreation, GSB No. 2086/96 (Leighton).

In terms of Article 8.1.1, the Employer contends that the grievors duties were consistent with their own position specification and did not involve the core or full duties of the NFA job in two areas: (1) the level of independence in regard to commercial/industrial valuations and (2) attendance at court to defend the assessments. It submits that while there was a lot of overlap between the jobs of the AFOs and NFAs, they did not overlap in these two critical areas.

The Employer argues that the onus is on the Union to establish, on the balance of probabilities, that the duties they performed were not within the AFO position specification and were part of the higher rated NFA job. It submits that the evidence falls short since none of the grievors attended courts in 1998, appeal preparation work was part of the job of AFO and any initial work on commercial or industrial valuations were reviewed by a Senior Assessor and thus within the job specification of an AFO.

The Employer acknowledges that reconsiderations are not part of the AFO position specification, but points out that it is also not part of the NFA position specification because the duties arose after the position specifications were created. It submits that management has the right to assign the work to both AFOs and NFAs and argues that reconsiderations were not AFO or NFA work, per se.

The Employer argues that it is not a question of the grievors’ abilities. The issue, instead, is whether the duties they were assigned fall within the AFO job or the NFA position. In its submission, there was a significant overlap between the two jobs but what the grievors were required to do falls within AFO job specification. It argues that the fact that some NFAs, because of geographic area, did not exercise each duty which could be required does not mean that the AFOs were doing NFA work, where, as here, the duties fell within their own position. Further, it contends that to the extent that any of the grievors may have acted beyond their job, management did not sanction it.

In support of its contentions, the Employer cites to Re OPSEU (Collins) and Ministry of Solicitor General, GSB No. 0807/85 (Kirkwood); Re OPSEU (Decarrie) and Ministry of Consumer & Commercial Relations, GSB No. 910/93 (Gray); OPSEU (Nichols) and Ministry of Health, GSB No. 778/89 (Knopf); Noon and Ministry of Community & Social Services, GSB No. 111/81 (McLaren); OPSEU (Farrelly) and Ministry of Correctional Services, GSB No. 424/86 (Draper); OPSEU (Bullock et al.) and Ministry of Transportation, GSB No. 699/87 (Fisher); OPSEU (Gervais) and Ministry of Health, GSB No. 392/89 (Dissanayake)

Finally, the Employer contends that it is not barred from raising the commercial/industrial valuation issue. It argues that the “different duties” of the NFA was raised in its Stage 2 response, and that its response did not limit the differences to attending courts. It further submits that it provided full particulars of this issue to the Union so there was no surprise at the hearing and the matter could be fully addressed by the parties. Plus, it contends that its response to an alleged contractual violation is not like its decision to impose discipline where it is limited to the reasons stated. It contends that it is free to raise additional legal arguments at arbitration. In support of its position, the Employer cites Re Toronto Transit Commision and Amalgamated Transit Union, Local 113 (1989), 1989 CanLII 9269 (ON LA), 6 L.A.C. (4th) 129 (Springate); Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local 43 (1975), 1975 CanLII 2058 (ON LA), 10 L.A.C. (2d) 247 (Adams); Re Dominion Castings Ltd. and United Steelworkers of America, Local 9392 (1998), 1998 CanLII 30064 (ON LA), 73 L.A.C. (4th) 347 (Levinson); Re McMaster University and Services Employees International Union, Local 532 (1993), 1993 CanLII 16657 (ON LA), 31 L.A.C. (4th) 257 (Brunner).

DECISION

1. May the Employer Raise the Issue of Commercial/Industrial Valuations?

I conclude that the Employer may properly raise the issue of whether the grievors performed independent commercial/industrial valuations at the arbitration hearing. The Employer’s Stage 2 response was broad enough to include all of the “different responsibilities” of the NFA and was not limited to attending court. The sentence “[t]he main difference is that a Neighbourhood/Functional Assessor can attend court, whereas you cannot carry out this function as a PA2” does not limit the preceding sentence which states that the NFA position specification “clearly shows that there are different responsibilities.” To read it as stating that attending court was the “only” difference is an unduly narrow reading. The word “main” means primary. It does not mean “only” or “exclusive”. To read it in that manner would not be an appropriate construction of what was written, nor would such a narrow contraction be appropriate in the context of the grievance process.

Because I conclude that the matter of “different responsibilities” was raised at Stage 2, I need not address the more general question of whether the Employer may “change” its legal defenses to an alleged contractual violation.

2. Did the Employer Violate Article 8.1.1 of the Collective Agreement?

Article 8.1.1 states as follows:

Where an employee is assigned temporarily to perform the duties of a position in a classification with a higher salary maximum for a period in excess of five (5) consecutive working days, he or she shall be paid acting pay from the day he or she commenced to perform he duties of the higher classification in accordance with the next higher rate in the higher classification, provided that where such a change results in an increase of less that three percent (3%), he or she shall receive the next higher salary rate again.

There are a significant number of GSB decisions interpreting this provision, the substance of which (except for the number of consecutive days required to trigger it) has not changed in many years. One of the leading cases is OPSEU (Collins) and Ministry of the Solicitor General, GSB No. 0807/85 (Kirkwood). In that case, the grievor, as Mechanic 2, sought acting pay for a one-year period during which he alleged he was assigned as acting foreman. The Board set forth the onus required at p. 4:

[T]he onus is upon the union to prove that the grievor was assigned to do a job temporarily; that the job was to perform duties of a position in a classification with the higher salary maximum; and that the job performed was for a period in excess of eight consecutive working days. If these three elements are proved the grievor is entitled to acting pay…

The first element that the union had to prove was that the grievor was assigned to a job which was not part of his own.

The Board held at p. 8 that to receive acting pay as a foreman, “the job he has to perform has to include the functions that go beyond that which were required for mechanic 2 and fall within the standards of a foreman.” Thus the Board carefully reviewed the expectations and requirements of the Mechanic 2 job as well as the foreman position. It noted at p. 8 that the “essence of the foreman’s job standards which specifically distinguish it from a mechanic 2 is the necessary function of supervising all the mechanics in the shop.” In contrast, a mechanic 2 could “supervise the work of one or two qualified mechanics performing on routine repair or maintenance work.” Under the specific facts of the case, the Board determined that the grievor may “have directed work to some of them from time to time but not sufficient to fall outside the scope of a mechanic 2 and within the scope of a mechanic/foreman.” (p. 8) Accordingly, the Board was unable to conclude that the grievor's supervisory role “went beyond the supervision referred to within the class definition” of Mechanic 2 and consequently dismissed the grievance.

In OSPEU (Nichols) and Ministry of Health, GSB No. 778.89 (Knopf), the Board relied on Collins’ threefold test. In that case, a number of Registered Nurses were claiming acting pay as Head Nurses during their temporary assignments as Charge Nurses. Based on Collins, the Board stated at p. 15 that “[t]he issue we have to deal with is whether the Union has succeeded in proving that the grievors were assigned to jobs which were not part of their own.” It determined that when the grievors were assigned as Charge Nurses they were expected to do more and were responsible for more than when they acted in the position of Registered Nurse – they oversaw wards, assigned tasks, coordinated activities and were the first level of response for their co-workers. But all of these functions of the Charge Nurse, the Board found, “were fully contemplated in the Nurse 2 and Registered Nurse position and level.” (p. 16) It determined that a Registered Nurse not only provides nursing care, but “is also expected as a core function or essential element of his/her duty to provide administrative duties on the ward such as relieving a Head Nurse, providing instructions to other nurses and other clinical staff, monitoring nursing efforts, reporting unusual occurrences and participating as part of the clinical treatment team.” (p. 16) In addition, “part of the job standard is that a Nurse 2 General may ‘supervisor the assignment of duties and check the work of subordinate staff on the same shift’ and that they ‘may on occasion, relieve supervising nurses.’” (p. 16) Thus, the duties of a Charge Nurse were “clearly part of a Nurse 2 General’s essential responsibility to be able to and to act in the role which has been assigned to a Charge Nurse at this facility.” (p. 17) As a result, the Board concluded that “we have not been satisfied that the grievors perform functions which go beyond those expected of a Nurse 2 General or Registered Nurse.”

The Board in Nichols also concluded that even if it was wrong about that, the grievance failed under the analysis found in Re OPSEU (Farrelly) and Ministry of Correctional Services, GSB No. 424/96 (Draper). In that case, a grievance for acting pay was denied because the grievors had not taken on the same level of responsibility and accountability of the position they were seeking. In Nichols, the Board found that the grievors were not assigned to the position of Head Nurse since “they did not share the same level of responsibility, accountability or overall functions of the Head Nurse.” (p. 17) Instead, the evidence showed “a large number of critical functions of the Head Nurse are not undertaken or expected from a Charge Nurse.”

A similar conclusion was reached in OSPEU (Noon) and Ministry of Community and Social Services, GSB No. 111/81 (McLaren). The grievor, whose responsibilities included teaching swimming to developmentally and physically disabled students, acting as life guard and performing duties related to the maintenance and operation of the pool, was put “in charge of the pool” during his supervisor’s absence, and sought acting pay for this assignment. The Board dismissed the grievance, concluding at p. 3:

The Grievor is not exercising the core of the responsibilities of the supervisor, those being the acceptance and use of authority in the course of directing other employees. For those reasons, it cannot be said that the Grievor is “performing the duties of a position” as required by Article 6.1. He is doing some of the tasks but does not have the supervisory authority or responsibility.

Collins was also followed in Re OPSEU (Bulllock) and Ministry of Transportation, GSB No. 699/87 (Fisher). In that case, it was determined that approximately 40% of the grievors’ time as Heavy Equipment Operator (HEO) IIIs, was spent performing the same task, night patrol, as a general foreman, and the question was whether they should be compensated as general foremen for the period of time they performed that job function. Relying on Collins, the Board held that “the Union can only succeed if in fact the duties perform by the HEO III as Night Patrolmen, did not constitute the job of an HEO III.” Based on both the class standards and the position specification for the HEO III position, it was clear “that night patrol duties are an integral part of the job.” Accordingly, the Board concluded that “they have not passed the first test in Collins, that is, they have not shown that the work were doing was not already part of their own job.” (p. 4)

Finally, in OPSEU (Decarrie) and Ministry of Consumer & Commercial Relations, GSB No. 910/93 (Gray), the Board stated as follows in regard to acting pay, at p. 11:

It is clearly not enough to show that the duties assigned were not ones which the grievor ordinarily performed. Nor is it enough to show that the duties assigned fell outside the description in the Position Specification for her home position and must therefore have been the duties of some other position. The Union must show that that other position was “a position in a classification with a higher salary maximum,” and that the grievor was assigned “the duties” of that position.

In terms of what “the duties” within then Article 6.1 meant, the Board concluded at p. 21 as follows:

The thrust of all of the decision cited to us … is that an employee cannot be said to have been assigned “the duties” of a position (or classification) unless he or she had been assigned all of its significant duties. We agree with that approach. A job which includes some but not all of the significant duties of a particular position may or may not fall within the same classification as that particular position, but it will not be that position.

(emphasis in original)

My task is to apply these standards to the facts in this matter. At the outset, however, I want to state that it is quite understandable why this grievance was brought. The evidence showed that 1997-98 was an incredible time in the Assessment Office for everyone. The office was under a mandate to reassess all properties in the province as to their value as of June 30, 1996, an enormous undertaking in the best of circumstances. But circumstances were not the best in the London region since approximately ten NFAs left the office at that time. As a result, the more senior AFOs were called upon to do more, independently, than they had done before. They often worked side-by-side with NFAs instead of just “assisting” them. Their work did not seem to be at a “junior level” as originally envisioned with the AFO job.

But all of that does not mean that the grievors are entitled to acting pay as NFAs for 1998. The right to acting pay under Article 8.1.1 depends on whether the duties the grievors were required to perform were not part of the AFO job but were instead NFA duties and responsibilities. It also depends on whether the grievors were assigned to perform all of the significant or core duties of the NFA position.

As set out in Collins, supra, the first element that the Union must prove is that the grievors were “assigned to a job which was not part of [their] own job.” The evidence shows that some of the grievors’ responsibilities – independent valuations and reassessments of residential and farm properties – were part of the AFO job. Indeed, according to Assessment Commissioner Smith, the assessment of the less complex, but more numerous, residential and farm properties was the prime reason the AFO position was created. The evidence also shows that AFOs may make the initial valuation or reassessment of multi-residential, commercial and industrial properties, subject to review. What they cannot do is independently valuate such properties. That is the work of an NFA.

The evidence of the grievors is that the commercial/industrial valuations they performed were submitted for review to a Senior Assessor. It may well be, as they testified, that a review was not always done given the enormous pressures on the staff at the time. But the fact that they were submitted for review is important. It means that the AFOs were not directly accountable for the final number. Accountability would rest with the Senior Assessor.

Nor, in my view, does the limited period of time in late April to early May 1998, when all assessment staff in the City of London, Commercial/Industrial Section – NFAs, AFOs, and VAs – had to submit their valuations to a Senior Assessor for “verification and authorization” change the result. This control process was only for a very limited time and was adopted shortly before the presentment of the roll to limit the potential number of cross-foot errors. It did not change the level of review of the NFAs or AFOs, or equate them.

It is somewhat more difficult to determine whether reconsiderations were part of the AFO job. A great deal of the grievors time, as well as some NFAs, was spent involved in reconsiderations. There is no mention of it in the AFO or NFA position specifications since reconsiderations were new in 1998. Part of the reconsideration process, ensuring that the valuation was correct, was work that the AFOs had previously done. Another part, negotiating with the taxpayer and coming to a settlement, subject to review, was a new and added responsibility.

The fact that reconsiderations involved a new, added responsibility does not mean that the grievors are entitled to acting pay as NFAs. If the work assigned was beyond the class standard for a PA2 – and I make no ruling on that issue - it could mean that they were no longer properly classified. But the GSB no longer has jurisdiction over such matters. See, OPSEU (Rosamond), supra.

To receive acting pay, the work involved in reconsiderations must be considered NFA work. The evidence, however, falls short of establishing that it was NFA work. Clearly, it was NFA work to “defend the assessment of any property in the assigned neighbourhood at any judicial level.” Reconsiderations were a new process involving an informal discussion with the taxpayer to see if a dispute about the assessment could be resolved informally, before formal review. Moreover, it was optional. The formal review involves a hearing before the ARB and that is what the parties’ referred to as “doing” or “going to courts.” That process – formally defending the assessment before the ARB – did not change with the new legislation. Reconsiderations were assigned to both the NFAs and AFOs. I cannot conclude that it was strictly NFA work.

But even if reconsiderations could be considered NFA work, as part of defending an assessment, the evidence does not establish that the grievors were assigned “all of [the] significant duties” of an NFA as set out in Decarrie, supra. They did not independently valuate commercial and industrial properties and they did not defend valuations before the ARB. These are core duties of the NFA position, which the grievors did not perform.

The fact that some NFAs also did not do these things is not relevant legally, although it clearly gave rise to the grievors’ belief that they were doing the same work as some NFAs for less pay. I have no doubt that this occurred. But the assessment under Article 8.1.1 looks at whether an individual employee is “assigned temporarily to perform the duties of a position in a classification with a higher salary maximum…” It is the “duties of a position” that matters, not what an individual in that position may or may not be doing. Clearly, some NFAs in the London region, which outside of the City of London is largely rural, may not perform many, or indeed, any commercial valuations. Likewise, some may not, in any given period, attend court. But it is the duties of the NFA position that matters under Article 8.1.1, and those duties include independent commercial/industrial valuations and attending courts, duties which the grievors were not assigned to perform.

For these reasons, I cannot conclude that the onus of establishing that the grievors were entitled to acting pay as NFAs was met. Much of the work they were assigned in 1998 was part of their job as an AFO; some appears to have gone beyond what they had done in the past but cannot be said, on the balance of probabilities, to be “NFA work.” Further, they were not assigned all of the core duties of an NFA, including independent commercial/industrial valuations or attending courts. Accordingly, I cannot conclude that the grievors were “assigned temporarily to perform the duties of a position in a classification with a higher salary maximum…” within the meaning of Article 8.1.1.

In terms of Ms. Liotti, I also cannot conclude that she meets the requirements for acting pay under the collective agreement. Her work on the multiple regression analysis, as important as it was, clearly falls within the AFO position specification in terms of “assisting in special projects and performing other assignments in support of the assessment function as required.” It did not constitute NFA work, nor did the assessments she performed using that analysis render her an NFA.

For all of the foregoing reasons, the grievances are dismissed.

Dated at Toronto, this 24th day of August, 2000.