GSB #1834/99

OPSEU #99U080

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (OPSEU) Grievor

• and -

The Crown in Right of Ontario (Management Board Secretariat) Employer

BEFORE Ken Petryshen Vice Chair

FOR THE Nick Coleman GRIEVOR Counsel Gowling, Strathy & Henderson Barristers and Solicitors

FOR THE Len Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat

HEARING May 1, 2000.

DECISION

In a grievance dated November 23, 1999, against the Management Board Secretariat, the Union grieves as follows:

Statement of Grievance:

The Union grieves that the employer has violated the collective

agreement, including but not limited to Article 22.12, Appendix 7 and the related new Letter of Understanding in that, the employer has failed to fulfill its obligations concerning the Senior Persons Committee and further that the employer has refused to convene meetings of the Joint System Sub-Committee.

Settlement Requested:

1. A declaration by the Grievance Settlement Board that the employer is in breach of its obligations.

2. An order that the employer provide its position on retroactivity and a declaration that any agreement of the Senior Persons Committee will be arbitrable.

3. An Order requiring the JSSC to meet as soon as possible on complaints and grievances and to finalize reclassification issues referred to the JSSC.

By the time the parties made their submissions, the Employer had agreed to convene meetings of the Joint System Subcommittee (the “JSSC”). Therefore, the Union did not seek an order requiring the JSSC to meet as soon as possible to finalize classification grievances. At the hearing, the parties focussed on the Union’s allegation that the Employer had failed to fulfill its obligations concerning the Senior Persons Committee (the “SPC”). Rather than call evidence, the parties made submissions on the basis of agreed facts.

The relevant provisions of the Collective Agreement are as follows:

22.12 CLASSIFICATION

22.12.1 An employee who alleges that his or her position is improperly classified may discuss his or her claim with his or her immediate supervisor at any time, provided that such discussions shall not be taken into account in the application of the time limits set out in Article 22. An employee, however, shall have the right to file a grievance in accordance with the grievance procedure, specifying in his or her grievance what classification he or she claims.

22.12.2 A classification grievance as provided in Article 22.12.1 which has not been resolved by the end of Stage 2 of this grievance procedure may be referred to the Joint System Subcommittee (JSSC) provided in Appendix 7 (Classification System Overhaul) of this Agreement, for final resolution. The JSSC may decide on any grievance referred to it. Where the parties at the JSSC concur, their decision shall be binding on the parties and any affected employee. Where the parties at the JSSC do not concur, the matter shall remain unresolved unless and until concurrence is reached.

22.12.3 The Employer upon written request either by the employee or by the Union shall make available all information and provide copies of all documents which are relevant to the grievance.

APPENDIX 7 – CLASSIFICATION SYSTEM OVERHAUL

This confirms the agreement reached by the parties during negotiations with respect to the classification system overhaul.

(1) The classification system overhaul shall be deferred for the duration of this collective agreement, and for the period of its operation.

(2) The Joint System Subcommittee (JSSC) of the CERC, consisting of three (3) persons appointed by each party, is continued for the duration of the collective agreement and the period of its operation, to:

(i) provide a forum for ongoing discussion between the parties regarding classification matters;

(ii) review and decide on all complaints or differences involving allegations of improper classification.

(3) All decisions of the JSSC on disputes arising under paragraph 2(ii) shall be by vote of the members of the committee and any decision on which the parties’ representatives concur shall be binding on the parties and any affected employees. Each party must, in any case where such a decision is made, be represented by an equal number of persons appointed by each party.

(4) Union representatives of the JSSC shall be provided with reasonable travel time and leave with pay to attend of the committee.

APPENDIX 8

LETTER OF UNDERSTANDING

Between

THE CROWN IN RIGHT OF ONTARIO

(MANAGEMENT BOARD OF CABINET)

“the Employer”

and

ONTARIO PUBLIC SERVICE EMPLOYEES UNION

“the Union”

IN THE MATTER OF Article 22.12 and Appendix 7

This will confirm certain understandings reached regarding the operation of the Joint System Subcommittee (JSSC).

It is acknowledged that there is a perception that the JSSC has not worked effectively. It is the desire of both parties that the JSSC be an effective consultation forum, and that classification matters be dealt with.

It is agreed that, within thirty (30) days of the date of ratification, the parties will appoint two senior persons from each side to examine the workings of the JSSC, and make recommendations to improve its operation.

The matters to be examined by the parties will include:

(1) methods to ensure that members of the JSSC are empowered to make decisions on classification matters;

(2) means to ensure the prompt disposition of classification disputes;

(3) criteria by which the JSSC is to make decisions;

(4) such other matters regarding classifications as the parties may agree upon.

Prior to mid-1993, the GSB had the jurisdiction to deal with classification issues. Beginning with the Social Contract Period, it could no longer hear and determine classification grievances. The relevant provision in the Crown Employees Collective Bargaining Act reads as follows:

52(1) Classification issues.- A provision in an agreement entered into that provides for the determination by an arbitrator, a board of arbitration or another tribunal of any of the following matters is void:

1. A classification system of employees, including creating a new classification or amending an existing classification system.

2. The classification of an employee, including changing an employee’s classification.

In the first collective agreement negotiated after the Social Contract Period, the parties agreed to Article 22.12 and an Appendix 7. In essence, classification grievances were to be referred to the JSSC for final resolution. As the provisions indicate, the JSSC consists of three persons appointed by each party and a decision of the JSSC is only binding if all the parties concur. Appendix 7 was altered and Appendix 8 was agreed to during the last round of bargaining. The parties acknowledge in Appendix 8 that there is a perception that the JSSC has not worked effectively and express the desire to have the JSSC deal with classification matters. This appendix provides that the parties will appoint two senior persons from each side to examine the workings of the JSSC and “to make recommendations to improve its operation”. The parties set out certain matters to be examined by the SPC, including “such other matters regarding classifications as the parties may agree upon”.

The parties did establish the SPC as required by Appendix 8. The senior persons engaged in the process of examining the workings of the JSSC and they attempted to achieve a consensus on recommendations to improve its operation. As one might expect, the senior persons have had continuing contact with their principals during this process. Accordingly, the recommendations flowing from the SPC process will not come as a surprise to the parties.

The SPC has been able to agree on some recommendations to improve the operation of the JSSC. The process broke down over two issues, the issues of retroactivity and arbitrability. The following draft document (the “draft”) sets out what recommendations the parties agreed to and where they disagree (the italicized portions).

Ontario Public Service Employees Union,

(the “Union”)

and

Management Board Secretariat,

(the “Employer”)

RECOMMENDATIONS

OF THE

THE JOINT SYSTEMS SUBCOMMITTEE

WHEREAS the OPSEU/MBS Collective Agreement entered into on March 18, 1999 contains a letter of understanding regarding the operation of the Joint Systems Sub-Committee (JSSC).

WHEREAS that letter of understanding acknowledges the perception that the JSSC has not worked effectively and the desire of both parties that the JSSC be an effective consultation forum, and that classification matters be dealt with.

WHEREAS it was agreed that the parties would appoint two “senior persons” from each side to examine the workings of the JSSC and make recommendations to improve its operation.

WHEREAS those senior person have met and have negotiated joint recommendations:

The “senior persons” recommend to their principals as follows:

A) Methods to Ensure that Members of the JSSC are Empowered to Make Decisions

1. The Employer agrees and will confirm with the Ministries that the JSSC is the final decision maker with respect to classification grievances. A statement confirming JSSC’s authority to make final decisions will be contained in an internal directive to be sent to all Ministries. That directive will be forwarded to all Ministries within 30 days after final approval of these Recommendations by the two parties. (This time is needed to allow the Employer to communicate these Recommendations to the Human Recourses Council before the directive is issued. The Council meets the 2nd Thursday of each month.)

B) Means to Ensure Prompt Disposition of Classification Disputes

2. The Union agrees to provide the Employer bi-weekly copies of grievance forms received from employees who have asked for their case to be referred to the JSSC.

3. The Employer will retain additional resources to provide administrative and analytical support to the JSSC process.

4. Prior to any meeting of the JSSC, the Union will communicate to the Employer which cases they want to deal with. These cases shall be discussed with the Employer and a decision made by the Union regarding which grievances will be tabled. A decision concerning any classification grievances tabled with the JSSC (not including classification complaints as outlines in 5) below) shall normally be made within four months from the date of tabling or within such further time frame as is agreed to by mutual consent. If the Employer finds that it will be unable to make a decision within four months, the Employer shall advise the Union of the reasons as soon as possible.

5. The next scheduled meeting of the JSSC to deal with cases shall occur no later than 45 days after approval of these Recommendations by the parties. At that meeting, the JSSC shall commence to deal with the backlog of classification complaints filed under the Briggs decision. All complaints will be tabled at the same time. Complaints on all like issues will be grouped and reviewed and decided upon within six months. Immediately after the backlog of classification complaints has been dealt with, the JSSC shall deal with outstanding classification grievances within individual time frames as in 4) above.

6. Where a complaint filed under the Briggs decision or a grievance does not specify the remedy sought, the JSSC may require that particulars be provided before a decision is made.

C) Criteria By Which the JSSC is to Make Decisions

7. The criteria to be used for decision making by the JSSC shall be:

a. the class standard;

b. usage based on “representative practice”.

8. When the JSSC reviews and decides on allegations of improper classification, it shall record a brief explanation of the reasons for the decision. If the parties do not agree on a decision, each party shall record a brief explanation of its position.

The JSSC shall jointly develop the format for letters to communicate decisions to grievors. In cases where the majority voted to allow the grievance the letter will say the grievance was allowed and why; in cases where there is no majority vote to allow the grievance, the letter will say there was no concurrence and why.

D) Retroactivity

9. Retroactivity shall normally be paid from 30 days prior to the filing of a grievance. Consideration shall be given to whether exceptions should occur.

E) General Matters

10. Concerning member time off for the functioning of the JSSC, the Employer will grant time off consistent with the provisions of the CERC and will adjust the amount of time off as reasonably appropriate based on the volume and nature of cases being dealt with.

The Employer agrees to schedule the dates for meetings several months in advance to accommodate member work schedules. Amount of time off, to cover caucus time, time to attend the JSSC meeting and reasonable travel time, will be determined based on the volume of work and time needed to transact JSSC business.

11. The Employer agrees at the first meeting of the JSSC to deal with the complaints backlog, the Union will require extra time off to deal with cases (estimated 5 days).

12. The parties agree that these recommendations are not arbitrable.

The draft discloses that the senior persons were able to agree to many recommendations relating to the matters that they were to examine. The disagreement within the SPC can be summarized as follows. The italicized provision on retroactivity set out in the draft is a proposal which came from the Union. The Union proposed that retroactivity normally be paid from 30 days prior to the filing of the grievance, with exceptions made in the appropriate circumstances. In its view, its proposal is consistent with the general arbitral approach. In disagreeing with the Union’s proposal, the Employer instead proposed that retroactivity be paid from 30 days prior to the filing of the grievance, or from the date the recommendations of the SPC are accepted, whichever is later. In other words, there would be no retroactivity paid on successful grievances that were filed prior to the date the recommendations are accepted. This issue is of importance to both parties because there may be as many as 1,500 classification grievances outstanding. The Union has rejected the Employer’s retroactivity proposal because it is unwilling to write off a grievor’s damages and because it will not accept different treatment for existing and future grievances. The Union views the Employer’s proposal as one which is merely designed to save the Employer money and further contribute to the perception that the JSSC is not an effective mechanism for resolving classification issues.

The Employer initiated the proposal that the recommendations of the SPC not be arbitrable. The Union rejected the proposal out of a concern that the Employer will not comply with the recommendations without an effective enforcement option.

The final contentious issue relates to the Employer’s position that there will be no agreement on any of the recommendations unless the Union agrees to the Employer’s proposals on retroactivity and arbitrability. In other words, even though it has agreed to the bulk of the recommendations, the Employer has advised the Union that it will withdraw its agreement on the other recommendations if the Union does not agree to its position on retroactivity and arbitrability.

It was on the basis of these circumstances that the Union argued that the Employer had contravened Appendix 8 of the Collective Agreement. Specifically, the Union claims that the Employer has failed to comply with its obligation to have the SPC “make recommendations to improve the operation” of the JSSC. The Union argued that the language of Appendix 8 provides for a bargaining process which carries with it an obligation to bargain in good faith, similar to the duty contained in the Ontario Labour Relations Act. In the Union’s submission, this obligation is directed to the negotiation of recommendations to improve the operation of the JSSC. The Union claims that the Employer’s proposals on retroactivity and arbitrability are unreasonable and indicative of bad faith dealing. The Union argued that by proposing that it agree to writing off damages for existing grievances and to no enforcement mechanism, the Employer is making proposals tailor made for rejection. The Union asserted that, on their face, the Employer’s proposals are not designed to improve the operation of the JSSC, but are made for some other purpose. The Union also argued that the Emloyer’s proposal on retroactivity conflicts with Article 22.18. This provision sets out how interest shall be paid for the period 30 days prior to the filing of the grievance and for the period after the date of the decision.

In arguing that there has been no contravention of Appendix 8, the Employer submitted that all that has occurred here is the inability of the parties to reach a consensus on what recommendations would improve the operation of the JSSC. In the Employer’s view, the failure to agree to a proposal from the other side does not lead to the conclusion that a party is acting unreasonably or in bad faith. The Employer noted that the language in Appendix 8 refers to the making of recommendations and does not use words that contemplate a negotiation process in which an agreement will be reached. The Employer also noted that the parties examined the matters referred to in Appendix 8 and argued that nothing precludes the parties from providing their principals with the agreed to recommendations, along with their disagreements, and still move forward with the process. The Employer argued that there has been no contravention of Appendix 8 because what the parties agreed to do has been accomplished.

The Employer also argued that its proposals on retroactivity and arbitrability were intended to improve the operation of the JSSC and that the Union has not established otherwise. The Employer submitted that there is no conflict between its retroactivity proposal and Article 22.18 because that article merely deals with how interest will be calculated and does not provide a substantive right to retroactivity.

As is evident from Appendix 8, the parties are concerned about the perception that the JSSC is not an effective vehicle for resolving classification issues. Since employees covered by the Collective Agreement can still file classification grievances, and it appears they do so with some frequency, a resolution system which is ineffective can result in considerable dissatisfaction and a serious labour relations problem for both parties. Appendix 8 represents an attempt by the parties to improve the operation of the JSSC. They agreed to appoint four senior persons, two from each side, to examine the workings of the JSSC and to “make recommendations to improve its operation”. In effect, the senior persons constitute a subcommittee of the parties charged with the task of devising solutions to improve the credibility of the JSSC. The SPC has agreed to a number of recommendations concerning those matters which Appendix 8 indicates should be examined, but has encountered a “roadblock’ on a few issues. The grievance raises the issues of the nature of the Employer’s obligation under Appendix 8 and whether it has failed to meet its obligation in these circumstances. More specifically, the central issue in dispute is what did the parties intend by their agreement to have the SPC “make recommendations to improve its operations”.

The wording of Appendix 8 clearly indicates that the SPC has an obligation to make recommendations to improve the operation of the JSSC. The language used by the parties does not contemplate a process where each side on the SPC will make separate recommendations, or that the SPC will merely attempt to make recommendations. Just as a failure by a party to appoint senior persons to the SPC would constitute a contravention of Appendix 8, a party’s conduct which resulted in the failure of the SPC to make recommendations would also constitute a contravention of Appendix 8. The Employer’s suggestion that the senior persons could make separate recommendations or not agree on any recommendations is not consistent with the intention of the parties. In my view, the parties agreed in Appendix 8 that the senior persons perform a particular task, the task of making recommendations to improve the JSSC.

Although one can imagine that the process within the SPC would involve some “bargaining”, it is unlikely that the parties envisioned the process as encompassing a duty to bargain in good faith similar to the duty provided for in the Ontario Labour Relations Act. It would be unusual for such a duty to apply to a process which takes place during the term of a Collective Agreement. It is more likely that the parties contemplated a process in which proposals would be exchanged covering the matters to be examined, in which there would be agreement on some proposals and disagreement on others, and where ultimately the SPC would make its recommendations to improve the operation of the JSSC. Implicit in Appendix 8 is an obligation on both parties to act reasonably during this process.

As the Employer argued, the mere failure to agree to a specific proposal cannot properly lead to the conclusion that one side is not complying with its obligations under Appendix 8. It is not difficult to imagine that in the course of exchanging proposals, one side on the SPC may have a different view from the other side as to whether a particular proposal will improve the operation of the JSSC. In this case, it is not so obvious that the Employer’s proposals on retroactivity and arbitrability were not made with a view to improving the operation of the JSSC. For instance, an agreement that the recommendations are not arbitrable would keep certain disputes away from the GSB and perhaps have the effect of enhancing the credibility of and improving the efficiency of the JSSC. An agreement limiting retroactivity on grievances which were filed before the recommendations were accepted may have the effect of focusing the attention of the JSSC on the merits of a case, rather than a significant damages claim, and may result in more successful grievances. In any event, as noted above and as suggested by the Employer in its submissions, the process contemplated by the parties is one in which the other side need not agree to a particular proposal. With no agreement on the issue of retroactivity, each party can advance a position on this issue before the JSSC on a case by case basis. I agree with the Employer’s submission that its retroactivity proposal does not conflict with Article 22.18.

The facts disclose that the senior persons have reached agreement on many recommendations and they have only a few disagreements. This is not a case where one side is alleging that the other side’s proposals demonstrate an unwillingness to reasonably participate in the process to achieve the objective of improving the operation of the JSSC. If such an allegation had been made, it would have been necessary to review one side’s entire participation in the process, not just one or two of its proposals, to determine whether it met its obligations under Appendix 8.

Although the Union’s allegations with respect to the Employer’s proposals on retroactivity and arbitrability have not succeeded, its position on the final contentious issue does have merit. In a process where the objective is to make recommendations to improve the operation of the JSSC, and where each side is not compelled to accept a proposal, the Employer’s position that it will not put forward any recommendations unless the Union agrees to its proposals on retroactivity and arbitrability is troubling. Although the Employer has agreed to many recommendations, it is prepared to withdraw its agreement to the items set out in the draft unless the Union accepts its position on the two disputed proposals. In my view, this Employer position is inconsistent with the obligation of the SPC to make recommendations and it is also inconsistent with the obligation to act reasonably. Just as the Employer is entitled to reject the Union’s proposal on retroactivity, the Union is entitled to reject the Employer’s proposals on retroactivity and arbitrability. The proposals on retroactivity and arbitrability are arguably matters which fall within (4) of Appendix 8, namely the type of matters which the parties have specifically recognized as the kind of issues they need not agree upon. In rejecting these Employer proposals, the Union has not acted unreasonably. By insisting on a position that will result in no recommendations being made, the Employer has not met its obligations under Appendix 8.

Accordingly, the Union’s grievance is allowed. The Employer is directed to cease and desist from taking the position that it will not agree to any recommendations unless the Union agrees to its proposals on retroactivity and arbitrability. The SPC is directed to complete the process under Appendix 8 of the Collective Agreement. I will remain seized of this grievance should the parties encounter difficulties in implementing this decision.

Dated at Toronto, this 27th day of September, 2000.