GSB#0147/95, 0148/95, 0812/99

OPSEU# 95C468, 95C469, 99C822

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Wilson/Anastaskos et al)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Transportation)

Employer

BEFORE Nimal V. Dissanayake Vice Chair

FOR THE Robin Gordon GRIEVOR Grievance Officer Ontario Public Service Employees Union

FOR THE Kelly Burke, Counsel EMPLOYER Legal Services Branch Management Board Secretariat

HEARING March 13, 2001.

DECISION

This decision relates to the following files:

0147/95 Kelly

0148/95 Levere

0812/99 Wilson/Anastasakos

It deals with a preliminary objection by the employer that all of the grievances are inarbitrable because they are classification grievances over which the Board no longer has jurisdiction. The objection is based on the Local Appendix to the Social Framework Agreement dated August 1, 1993 between the parties, which was executed to assist in implementing the Social Contract Act, 1993 S.O. Ch. 5. (Hereinafter “the Local Appendix”) The pertinent provisions of the Local Appendix are as follows:

8. The parties agree that all classification grievances under the Crown Employees Collective Bargaining Act or under a collective agreement between the parties filed by or on behalf of employees in the bargaining unit of public servants represented by the Union for which a decision of the Grievance Settlement Board has not been rendered by August 1, 1993 are withdrawn effective August 1, 1993 and the parties shall take no steps to further any such grievance or any hearing of such a grievance and shall take no steps to enforce any decision of the Board pertaining to any such grievance after August 1, 1993.

9. The parties agree they shall take no steps to further any classification grievances under the Crown Employees Collective Bargaining Act or under a collective agreement between the parties filed after August 1, 1993, except for any classification

grievances in respect of a new classification system in which such grievances are expressly allowed.

10. For the purposes of this agreement, and, in particular paragraphs 5 and 6 above, “classification grievances” includes, but is not limited to,

(a) all grievances claiming improper classification of persons classified within the Office and Administration Group of the classification system of the Employer.

(b) all grievances claiming improper classification of persons within the classification system of the Employer in which part of the settlement desired is the making of a new classification or classification standard, and

(c) all grievances claiming improper classification of persons within the classifications system of the employer in which part of the settlement desired is the reclassification of the grievor or grievors to an existing classification standard that properly applies to him, her or them.

A side letter to the Local Appendix, entered into between the parties reads:

The Employer agrees to allocate the lump sum of $ 20,000,000.00; in addition to any other amount allocated for the Bargaining Unit Overhaul, for the purpose of compensating employees whose classification grievances have been withdrawn or rendered void by the local agreement.

The Employer will pay this money to the employees mentioned above in accordance with an agreement between the Union and the Employer for the distribution of the monies to these employees.

It is also to be noted that in 1993 the provisions of the Crown Employees Collective Bargaining Act giving the Board jurisdiction to decide classification grievances were repealed and the following provision substituted:

52(1) 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 system or amending an existing classification system.

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

The issues in the Kelly grievance and the Wilson/ Anastasakos grievance are identical, while the Levere grievance involves different considerations. Each grievance will be dealt with separately.

The Wilson/Anastasakos grievances

The following agreed statement of facts was filed:

1. Alex Wilson and Tom Anastasakos were employed with the Ministry of Transportation in the position of “Utilities Technician”, classified as Technician 2, Municipal Engineering (T2ME) for the period April 1, 1990 to January 31, 1994. They were employed in the central region.

2. Mr. Wilson and Mr. Anastasakos filed the present grievances dated February 26, 1993 claiming they were improperly classified. Attached at TAB 1 is a copy of the grievances.

3. Between 1986 and 1989, twenty three (23) employees in the position of Corridor Management Officer (CMO) classified as Inspector Signs and Buildings Permits 2 (ISBP2) grieved their classification. On January 5, 1990, an award of the Grievance Settlement Board (GSB)found that were “improperly classified” and directed the Employer to create a new classification to properly reflect the grievors’ duties and responsibilities. (See Re OPSEU (Berry) and the Crown in Right of Ontario)”. Attached at TAB 2 is a copy of the GSB award dated January 5, 1990.

4. As part of the Social Contract Act,1993 and the Local Appendix, OPSEU and Management Board of Cabinet agreed to settle all unresolved classification grievances filed between January 1, 1986 and August 1, 1993. All such grievances were withdrawn or rendered void by the terms of the Local appendix and a $ 20,000,000.00 settlement amount established to compensate those employees whose classification grievances were withdrawn or rendered void. This was communicated to employees by way of a letter dated December 21, 1994 which is attached at TAB 3. Attached at TAB 4 is a copy of the Local Appendix between the Government of Ontario and OPSEU dated August 1, 1993.

5. Mr. Wilson and Mr. Anastasakos were compensated out of the $ 20,000,000.00 and by the terms of the agreement the payment rendered their grievances null and void. Attached at TAB 5 IS The Memorandum of Agreement dated November 17, 1994 which identifies the $ 20,000,000.00 settlement and the list of employees who were eligible for a portion of the payment.

6. The grievors referred to in paragraph (3) above are identified in the appendix attached to the said Grievance Settlement Board award. Neither Mr. Wilson nor Mr. Anastasakos were among the (23) grievors and they did not occupy a CMO position.

7. a. Pursuant to Maintenance Renewal project, the Ministry of Transportation reclassified the grievors identified in paragraph (3) above from Inspectors Signs and Buildings Permits 2 (ISBP2) to the Technician 2 Municipal Engineering (Atypical) for pay purposes only effective April 1, 1990.

b. On January 28, 1993, the Labour Relations Tribunal found that the Technician 2 Municipal Engineering (Atypical) classification was insufficient for the position of CMO. Therefore, it ordered that the ISBP2 classification for the CMO position be rated and paid in accordance with the Engineering Services Officer 3 (ESO3) classification rates. Attached at TAB 6 is a copy of the decision.

c. On July 27, 1993, OPSEU and Management Board Secretariat signed a Memorandum of Settlement regarding the wage rates and implementation of the ISBP2 classification for the CMO position. Attached at TAB 7 is a copy of the Memorandum of Settlement.

8. On February 1, 1994, the Ministry of Transportation reclassified the position of Utility Technicians to the ISBP2 classification. The positions held by Mr. Wilson and Mr. Anastasakos were affected by this reclassification.

9. Mr. Wilson and Mr. Anastasakos are no longer employees of the Ontario Public Service.

(Attachments omitted)

At the hearing the parties stipulated a correction to Para. 5 by agreeing that Mr. Wilson did not receive any compensation from the $ 20 million settlement amount, and further that it was unclear whether Mr. Anastasakos received any compensation. The preliminary issue was argued on the basis of the agreed facts and the documents referred to therein.

Union counsel set out for the Board the nature of the grievance that will be pursued on behalf of grievors Wilson and Anastasakos. The union pointed out that the evidence will show that although the two grievors were not CMO’s and hence were not covered by the GSB decision finding that the CMO’s were improperly classified, the employer had recognized on two occasions that the work performed by the grievors was of equal value and responsibility. Thus, the employer moved CMO’s to the T2ME classification allocated to the Utilities Technician position held by the grievors. Second, after the Board had ruled in 1994 that CMO’s should be paid at the 1SBP2 level, the employer reclassified the Utility Technician position also to the ISBP2 level. In announcing the reclassification, the employer stated “The decision is based on the recognition of the need to establish parity between the Utilities Technician positions and the Corridor Management Officer positions due to the interchangeable and parallel nature of the work performed”. The union stated that it will lead evidence to show that as early as 1993 the employer understood that the new class standards and wage rates for CMO’s would also be applied to the grievors.

The union concedes that parity was achieved for the grievors in 1994 when the employer unilaterally brought them up to the same level as CMO’s. However, the crux of its grievance is that the employer did not grant any retroactivity to its decision. The result, according to the union, was that between 1990 and 1994 the grievors were doing the same work as CMO’s, but were paid less. The union will call evidence to show that during that period any difference between the grievor’s work and that of the CMO’s was purely semantic. The union submits that this case is not about classification but about retroactive compensation. The grievors have been already properly classified by unilateral employer action. Thus they are no longer seeking re-classification. They are merely seeking proper compensation for the period prior to that employer action. The union urged the Board to deal with the merits of these grievances and to remedy the injustice suffered by the grievors, who have received arbitrary and unequal treatment by being paid less than other employees performing essentially the same work.

In the alternative, the union submitted that, if the merits of the grievances are heard, it would lead evidence to show that the grievors also were subject to unfair and unequal treatment in another way. When the increases were awarded in 1994, some employees received a “step to step” increase. For example, if they were at step 5 of the old wage grid, they were placed at step 5 of the new grid. However, the grievors were treated differently. They were merely accorded a 3 percent promotional increase, as a result of which, they moved from step 5 of the old grid to step 3 of the new grid. The union submits that it was an unfair and arbitrary exercise of management rights and was seeking to correct this injustice through these grievances.

The employer’s position is that the Wilson/Anastasakos grievances are captured by the settlement in the Local Appendix, and are void. Therefore, the Board lacked jurisdiction to deal with the same. Counsel countered the union’s argument that labour relations interests will be served by redressing the injustice alleged, by submitting that the Board has an obligation to foster good labour relations by upholding and giving effect to the agreement entered into between the parties in the Local Appendix.

The union relied on Re Barker, 2476/92 (Kaplan) and Re Courte/MacGregor, 1946/93;0206/94 (Roberts). In the former case the employer took the position, inter alia, that the grievances were classification grievances and that since the grievor’s were unclassified employees, they were not entitled to file classification grievances. The union contended that the grievors were merely seeking their rights under article 3.3.1, that it was a claim for compensation under that article and not a claim for reclassification. In dismissing the employer’s position, the Board at p. 11 wrote:

These grievors are not challenging their classification. What they are doing is seeking the review of their compensation, which is determined by management selecting an “equivalent” classification. This is the only sense in which the grievances pertain to classification, and in no way can they be described as classification grievances of the kind that frequently come before this Board. The grievors are entitled, under Article 3.3.1 of the Collective Agreement, to be paid the wage rate assigned to an equivalent classification, and that entitlement carries with it a corresponding entitlement to grieve the comparator classification assigned to them for the determination of wages where the allegation is made that it is not equivalent. The matter of equivalence is an issue for the Board to decide. Obviously, the grievors have every right to file grievances pertaining to the overtime provision of the Collective Agreement.

In Re Courte/MacGregor, the grievors had claimed that the employer had discriminated against them on the basis of disability contrary to article A.1.1 of the collective agreement by paying them at lower wage rates than other employees performing similar work for the employer. The union contended that the duties and responsibilities of the grievors were valued at a lower level than those of other employees because of an assumption that the grievors could not do as much as other employees because they were disabled. On the merits, the employer took the position that the grievor’s disability had nothing to do with their pay rates. In any event, the employer submitted that the GSB lacked jurisdiction to hear the merits of the grievances because they were, in substance, classification grievances, which were barred by the Local Appendix.

In rejecting the employer’s objection to arbitrability, the Board observed at pp. 7-8,

Under paragraph 10(c) of the Local Appendix, “classification grievances” include “grievances claiming improper classification ... in which part of the settlement desired is ... reclassification.” To fall within this definition, then a grievance must (1) claim improper classification; and, (2) seek as part of the settlement, reclassification. In the present case, the grievances do not claim reclassification. They claim discrimination.

Nor do we think, as suggested by counsel for the Ministry, that in substance, the grievances claim improper classification. It seems to us that a claim of discrimination might involve the consideration of evidence and issues far beyond those to be found in the usual classification grievance. For example, evidence might be called bearing upon the issue of discriminatory intent, e.g., memoranda, letters or statements made by those who originally classified the position indicating a generalized view that all handicapped persons were not capable of performing at the same level as other dispatchers. Evidence of lack of discriminatory intent has already been hinted at by counsel for the Ministry, e.g., the indication of counsel that the jobs of the grievors were classified before it was known they would become part of the affirmative action programme and the potential request that the Board take a view of the facilities to determine the degree to which they differ from other dispatching facilities in the Ontario Provincial Police.

The employer cited in support of its position, Re Aitken 0678/87 (Gorsky) and Re Rosamond, 2086/96 (Leighton). In the former case, the grievor claimed that she “was improperly placed in the pay scale of OAG8 schedule” and sought to be placed “... at the top level of OAG8 pay schedule as of December 31, 1985,” and that she be given “full retroactivity, salary and benefits for that period of time”. The employer took the position, inter alia, as the present employer did, that the grievance was barred by the terms of the Local Appendix.

At p. 8 the Board noted the positions of the respective parties:

It was the position of the union that the grievance before us does not concern classification but, rather, proper placement on the OAG 8 grid when the Grievor was transferred from the Clerk 3 General classification to that of OAG 8 on January 1, 1986.

The Employer’s position was that the allegation that the Grievor had been improperly placed on the OAG 8 grid was based on an alleged misclassification in 1982 and, hence, the Union’s position, in reality, relates to a claim that the Grievor had been improperly classified in 1982.

The Board made the finding of fact that the grievor had been classified as a Clerk 2 upon her appointment to the underfill position in 1982. At pp. 10-11 the Board set out the union’s case on the merits of the grievance:

It is also evident from the Union’s Statement of Facts and Issues that its case would be dependent on its establishing the facts outlined by it as supporting its view of the resolution of the issues before the Board. In paragraph 4 of its Statement there is an allegation that the duties and responsibilities of the Grievor were identical to those of Claims Processing Clerks classified at the Clerk 3 level, and paragraph 5 discloses the union’s position that the Grievor’s skills and knowledge were identical to that of the Claims Processing Clerks classified as being at the Clerk 3 level.

Most significantly, under “Reasons for the Grievor’s Request for Reclassification,” paragraph 6 of the Statement provides that the Grievor was misclassified as Clerk 2 (underfill) during the first year of her employment as a Claims Processing Clerk and that this alleged misclassification had the effect of, inter alia, placing her in a lower level of the OAG 8 wage grid upon the transition to OAG on January 1, 1986 until she achieved the top level of that grid.

It is evident from the statement of the Union that it must first be established whether its allegations with respect to the duties and responsibilities performed by the Grievor and her skills and knowledge were “identical to those of Claims Processing Clerks who were classified at the Clerk 3 level,” and not those of a persons classified as Clerk 2.

Noting that paragraph 10 of the Local Appendix does not furnish an all-encompassing definition of “classification grievances’, the Board stated at p. 22

We would regard classification grievances as including grievances that can only be decided if the Board must first render a decision with respect to the proper classification of a grievor at some point in time.

Since the Board had to decide whether the grievor’s duties and responsibilities properly fell within the Clerk 2 or Clerk 3 classification in order to determine her claim for placement on the wage grid, the Board held at p. 22:

It is difficult to see how a grievance that requires the determination of a grievor’s correct classification at some point is not a classification grievance because the ultimate issue for determination involves placement on a salary grid. If the Union’s submission were accepted, then it would be possible to disguise many classification grievances, which are largely driven by a legitimate desire to be paid at a grievor’s proper classification level, by formulating the grievance as raising an ultimate issue that does not refer to her having been misclassified, even if the ultimate issue cannot be decided without first determining such an issue.

In Re Rosamond, the grievance alleged that “the employer has downgraded my classification from OAG 9 to OAG 8" and claimed the following remedy:

The employer reinstate my classification to OAG 9 retroactively to March 31, 1996. To be compensated in full from point of downgrade to reinstatement with interest at current bank rates. That the period of time during the downgrade be reviewed and adjustments with respect to my surplus be made where appropriate.

Like the employer here, the employer in that case also objected to the Board’s jurisdiction on the basis that it was a classification grievance barred by the Local Appendix. The union took the position that the grievance was in “pith and substance’ a bumping rights case.

In that case the position the grievor held had been down-graded in March 1996 as part of a review of classifications following a merger between two ministries, and was subsequently surplussed. At p. 4, the Board described the “core” of the grievance on its merits:

The “core” of the grievance before me is that Ms. Rosamond wanted to return to her previous position at Northern Development Corporation, however, having had her classification downgraded, she could not, given the rules of bumping. Her previous position at Northern Development was classified at OAG 9. The provisions in the collective agreement under Article 20.4.1 do not permit an individual to bump up a classification. Thus, Mr. Richards asked me to conclude that Ms. Rosamond’s complaint is not a classification grievance in the traditional sense.

Following a review of the Aitken decision (supra), the Board held at p. 7:

The case before me is similar in that it would require an examination of the job that the grievor was doing before her classification was downgraded from an OAG 9 to OAG 8, in order to decide the second issue of whether or not Ms. Rosamund had been denied her rights under Article 20. I am of the view that the language in Appendix 7, Section 3 is clear and unambiguous in stating that the JSSC has the jurisdiction to review and decide on “all complaints or differences involving allegations of improper classification.” There is nothing in this language to suggest that it only covers classification grievances where the grievor is alleging, in the traditional way, that his or her classification should be higher.

In the present case the grievors are not alleging that their classification at the time of grieving was improper. Nor are they seeking an order for reclassification. Thus, these are not traditional classification grievances. However, as the Board has held, para. 10 of the Local Appendix only contains an “inclusive” definition of a classification grievance. In Re Aitken the Board concluded that any grievance where “the Board must first render a decision with respect to the proper classification at some point in time” is captured by the Local Appendix. At p. 19 the Board observed that:

It is not unusual, in classification cases, for the issue to involve a question of classification at an earlier moment in time, where, at the time of the hearing, a grievor is already classified at the requested or a higher level.

In my view, the cases cited by the union are distinguishable. In Re Barber the Board was not considering the proper interpretation of the Local Appendix. There the grievors were unclassified employees and were attempting to enforce a particular right extended explicitly to unclassified employees by article 3.3.1 of the collective agreement. The Board simply held that when the grievors pursued that right, they were not pursuing classification grievances. In Re Courte/MacGregor, the essence of the grievance was a right not to be discriminated against on the basis of grounds prohibited by the collective agreement and the Ontario Human Rights Code. The Board there based its decision on the fact that the protection of human rights has an overriding importance and that the Social Contract Act, itself explicitly preserved that protection. Thus at p. 7 the Board wrote:

This is a broad prohibition of discrimination which incorporates by reference the prohibited categories of the Ontario Human Rights Code, including discrimination by reason of handicap. This reflects a determination by the parties to provide a remedy by way of grievance arbitration to supplant the often cumbersome and time consuming process perceived to be accorded complaints to the Ontario Human Rights Commission.

Next, we consider the impact of section 6 of the Social Contract Act. While this provision does not expressly prohibit application of the Social Contract Act to reduce a collective agreement right, it does prohibit any application of its terms that would reduce any right under the Human Rights Code. This is a strong provision, essentially giving overriding importance to the preservation and promotion of human rights.

In light of these indicia of the importance given by both the government and the parties to human rights, it seems to us that it would take clear and specific language in any agreement reached by the parties to cut down the rights of employees to advance to arbitration grievances claiming discrimination under Article A of the Collective Agreement. Upon reviewing paragraphs 8, 9 and 10 of the Local Appendix, we do not find such language.

The Board distinguished Re Aitken on the basis that there, the Board’s decision “would turn virtually entirely upon determining whether the grievors were improperly classified before their reclassification took place”, whereas in the grievances before it “... the decision may well turn upon issues related to discrimination and not merely a comparison of duties and responsibilities in different classifications”.

In my view, the case before me is even more similar to Re Aitken than Re Rosamond was. Here also, the union is seeking to prove that during a period prior to their ultimate reclassification, the classification allocated to the grievors’ positions did not reflect the duties and responsibilities they had. Union counsel repeatedly pleaded that the evidence will show that the grievors’ duties and responsibilities during that period were very similar to the duties and responsibilities of CMO’s who were classified at a higher paying level, and that any differences were merely semantic. The union couched its claim as a claim for retroactivity and for compensation, that it was seeking to correct the injustice of employees performing the same work for lesser pay than what was paid to other employees. Even though the union refrained from alleging that the grievors were improperly classified during the period in question, the conclusion is inescapable that the essence of the claim is that since they performed the same work as CMO’s during the period in question, they should have been paid at the same classification as the CMO’s. To determine the merits of the grievance, it would be essential for the Board to compare the duties and responsibilities of different classifications. In other words, the union’s entire case depends on a determination as to whether or not the classification allocated by the employer to the grievors’ position during the period in question was proper.

This clearly is an issue which is captured by the Local Appendix. Therefore, the Board lacks jurisdiction to deal with the grievances. In reaching this conclusion I have not been unmindful of the union’s claim that an injustice has been done to the grievors. It is trite to say that where any employee is improperly classified, and as a result is under-paid an injustice occurs. However, that does not detract from the fact that the parties have entered into an agreement, through the Local Appendix, to deal with such claims of injustice in a certain way. The Board has an obligation to respect and enforce that agreement.

For all of the above reasons, I find that I lack jurisdiction to deal with the grievances on the grounds adduced by the union as described in the foregoing pages.

I next turn to the alternate grounds relied upon by the union in support of the grievances, to the effect that, the employer had exercised its management rights in an arbitrary and unfair manner by denying the grievors step to step wage increases, while other employees were granted such increases. Employer counsel made no submission that the grievances on this ground are barred by the Local Appendix or for any other reason. Therefore, the Board will be prepared to hear these grievances on that basis.

The Kelly grievance

The following Agreed Statement of Facts was filed:

1. Kevin Kelly was employed with the Ministry of Transportation in the position of “Utilities Co-ordinator”, classified as Technician 2, Municipal Engineering (T2ME) for the period May 28, 1991 to January 31, 1994. He was employed in the eastern region.

2. Mr. Kelly filed a grievance dated April 18, 1994 claiming “discrimination based on the salary level placed at and the effective date of February 1, 1994 for my new reclassification to Inspector Signs & Buildings Permits.” Attached at TAB 10 is a copy of the grievance.

3. Pursuant to article 9 of the Local Appendix of the Social Contract framework dated August 1, 1993, “the parties agree they shall take no steps to further any classification grievances under the Crown Employees Collective Bargaining Act or under a collective agreement between the parties filed after August 1, 1993, except for any classification grievances in respect of a new classification system in which such grievances are expressly allowed”. Attached at TAB 4 is a copy of the Local Appendix.

4. This moratorium was codified at article 10.5 of Appendix 7 of the Collective Agreement between Management Board of Cabinet and the Ontario Public Service Employees Union dated January 1, 1994 to December 31, 1998, which states that “there will be a moratorium on classification grievances until June 1, 1998". A copy of the said provision of the collective agreement is attached at TAB 8.

5. Between 1986 and 1989, twenty three (23) employees in the position of Corridor Management Officer (CMO) classified as Inspector Signs and Buildings Permits 2 (ISBP2) grieved their classification. On January 5, 1990, an award of the Grievance Settlement Board (GSB) found that they were “improperly classified” and directed the Employer to create a new classification to properly reflect the grievors’ duties and responsibilities (See Re OPSEU (Berry) and the Crown in Right of Ontario)”. Attached at TAB 2 is a copy of the award dated January 5, 1990.

6. The grievors referred to in paragraph (5) above are identified in the appendix attached to the said Grievance Settlement Board award dated January 5, 1990. Mr. Kelly was not among the (23) grievors and he did not occupy a CMO position.

7. a. Pursuant to a Maintenance Renewal Project, the Ministry of Transportation reclassified the grievors identified in paragraph (5) above from Inspectors Signs and Buildings Permits 2 (ISBP2) to the Technician 2 Municipal Engineering (Atypical) for pay purposes only effective April 1, 1990.

b. On January 28, 1993, the Labour Relations Tribunal found that the Technician 2 Municipal Engineering (Atypical) classification was insufficient for the position of CMO. Therefore, it ordered that the ISBP2 classification for the CMO position be rated and paid in accordance with the Engineering Services Officer 3 (ESO3) classification rates. The award is attached at TAB 6.

c. On July 27, 1993, OPSEU and Management Board Secretariat signed a Memorandum of Settlement regarding the wage rates and implementation of the ISBP2 classification for the CMO position. The Memorandum of Settlement is attached at TAB 7.

8. On February 1, 1994 the Ministry of Transportation reclassified the position of Utility Coordinator to the ISBP2 classification. The position held by Mr. Kelly was affected by this reclassification.

(Attachments omitted)

The parties agreed that the issues arising out of these facts and their respective submissions with regard to Mr. Kelly’s grievance are identical to those in the Wilson/Anastasakos grievances. In the circumstances the employer’s objection to arbitrability in this grievance is also disposed on the same basis as the Wilson/Anastasakos grievance. That is, the Board finds that it lacks jurisdiction to deal with the claim for retroactive compensation on the basis of an alleged similarity of work, but that the Local Appendix does not bar the determination of the allegation that the employer had exercised management rights in an arbitrary and unfair manner.

The Levere Grievance

The following “Agreed Statement of Facts’ was filed:

1. Effective November 23, 1987, Doug Levere became an Inspector Signs and Buildings Permits 2(ISBP2). On February 20, 1989, he filed a classification grievance regarding the ISBP2 classification.

2. On July 17, 1989, Mr. Levere received a promotion to the position of Utility Co-ordinator, classified as Technician 1, Engineering Office, through a job competition. On April 2, 1990, the position of Utility Technician was reclassified to Technician 2, Municipal Engineering.

3. Between 1986 and 1989, twenty three (23) employees in the position of Corridor Management Officer (CMO) classified as Inspector Signs and Buildings Permits 2 (ISBP2) grieved their classification. On January 5, 1990, an award of the Grievance Settlement Board (GSB) found that they were “improperly classified” and directed the Employer to create a new classification to properly reflect the grievors’ duties and responsibilities. (See Re OPSEU (Berry) and the Crown in Right of Ontario)”. Attached at TAB 2 is a copy of the award dated January 5, 1990.

4. The grievors referred to in paragraph (3) above are identified in the appendix attached to the said Grievance Settlement Board award dated January 5, 1990. Mr. Levere was among the (23) grievors for the time he was in the (ISBP2) classified position.

5. Pursuant to article 9 of the Local Appendix of the Social Contract framework dated August 1, 1993, “the parties agree they shall take no steps to further any classification grievances under the Crown employees Collective Bargaining Act or under a collective agreement between the parties filed after August 1, 1993, except for any classification grievances in respect of new classification system in which such grievances are expressly allowed”. Attached at TAB 4 is a copy of the Local Appendix.

6. This moratorium was codified at article 10.5 of appendix 7 of the Collective Agreement between Management Board of Cabinet and the Ontario Public Service Employees Union dated January 1, 1994 to December 31, 1998, which states that “there will be a moratorium on classification grievances until June 1, 1998". Attached at TAB 8 is a copy of the provision of the collective agreement.

7. Mr. Levere filed the present grievance dated April 18, 1994 alleging “discrimination based on the decision by the Ministry of Transportation not to maintain parity in my position of Utility Technician and that of the Inspector Signs & Buildings permits 2 position from July 17, 1989 to the present date’. The grievance is attached at TAB 9.

8. a. Pursuant to a Maintenance Renewal Project, the Ministry of Transportation reclassified the grievors identified in paragraph (3) above from Inspectors Signs and Buildings Permits 2 (ISBP2) to the Technician 2 Municipal Engineering (Atypical) for pay purposes only effective April 1, 1990.

b. On January 28, 1993, the Labour Relations Tribunal found that the Technician 2 Municipal Engineering (Atypical) classification was insufficient for the position of CMO. Therefore, It ordered that the ISBP2 classification for the CMO position be rated and paid in accordance with the Engineering Services Officer 3 (ESO3) classification rates. The decision is attached at TAB 6.

c. On July 7, 1993, OPSEU and Management Board Secretariat signed Memorandum of Settlement regarding the wage rates and implementation of the ISBP2 classification for the CMO position. The Memorandum of Settlement is attached at TAB 7.

d. Mr. Levere received a retroactive pay increase for the period of January 23, 1989 (20) days prior to the grievance0 to July 17, 1989 when he became a Utility Technician. As a result of the GSB Award and Memorandum of Settlement, the ISBP2 classification became a higher paid classification than the T2ME.

3. On February 1, 1994, the Ministry of Transportation reclassified the position of Utility Technician to the ISBP2 classification. The position held by Mr. Levere was affected by this reclassification. He moved from the maximum pay level (5th step) of the T2ME grid to the 3rd step of the ISBP2 pay grid. The placement on the grid was in accordance with article 7 of the Collective Agreement dated January 1, 1994 to December 31, 1998.

(Attachments omitted)

Again the parties agreed that the issues arising out of these facts and that their respective arguments relating to this grievance were identical to those in the Wilson/ Anastasakos and the Kelly grievances. To that extent, the employer’s objection to arbitrability is disposed of in the same manner as in those grievances. That is, the Board finds that it lacks jurisdiction to deal with the claim for retroactive compensation on the basis of an alleged similarity of work, but that the Local Appendix does not bar the determination of the allegation that the employer had exercised management rights in an arbitrary and unfair manner.

However, the union raised an additional issue in the Levere grievance. The union stated that the evidence will be that when Mr. Levere participated in the job competition for the Utility Co-ordinator position, for him that represented a promotion with a higher pay rate. However, after he assumed his new position, following grievances filed by certain other employees, his former position was found by the GSB to have been improperly classified. Further to a Board order his former position was reclassified. The result was that his former position became higher paying than his new position. In other words, what he believed was a promotion turned out to be a demotion. The grievor would testify that had his former position been properly classified by the employer in the first instance, he would not have applied for a position, which represented a demotion with lesser pay. In this grievance, he claims that he should be retroactively paid at the rate applicable to his former position following the Board order and the reclassification, for the entire period he occupied that position. The union would argue that Mr. Levere should not be penalized because he was misled by the employer into believing that what he was applying for was a promotion. Counsel submitted that here Mr. Levere was not seeking reclassification. The reclassification was already done pursuant to a Board decision. The issue here is as to what retroactive entitlements flow as a result of the Board decision and the reclassification.

The employer took the position that the Board lacked jurisdiction to determine this issue because in substance the grievor was claiming that his position was improperly classified during the period in question. That was the basis of his claim for retroactive pay. Counsel submitted that the Local Appendix barred such a grievance because it was a classification grievance.

The alleged facts relating to this aspect of the grievance were presented orally by union counsel during her submissions. As a result the facts asserted are not very clear. However, as I understand, the union is claiming that the GSB has already found that the duties and responsibilities the grievor performed in his former position during the period he held that position had been improperly classified and had ordered that position to be reclassified. The union submitted that this aspect of Mr. Levere’s grievance cannot properly be described as a classification grievance within the meaning of the Local Appendix as interpreted by the Board. In these circumstances the union would not have to convince me that the grievor’s position was improperly classified at any point of time. The Board has already made that decision. The employer had complied with the Board order by reclassifying the position. Therefore, it has already been determined what the proper classification for the position was. The grievor was merely claiming that upon his reclassification, he was entitled to full retroactivity. The dispute was not about the proper classification, but about the extent of retroactivity.

The issue then is whether this claim by Mr. Levere for retroactivity is captured within the meaning of “classification grievance” as that term is used in the Local Appendix. Clearly, it does not fall within the definitions in paragraphs 10(a), 10(b) or 10(c) of the Local Appendix. Nor does it fall within the broader definition adapted in Re Aitken(supra), because Mr. Levere’s claim is not a grievance “that can only be decided if the Board must first render a decision with respect to the proper classification of a grievor at some point in time.” Clearly, the determination of Mr. Levere’s claim for retroactivity does not require me to determine the proper classification for his position, because that has already been decided and implemented. I would not be called upon to go through an exercise of comparing the duties and responsibilities of different classifications, as would typically be the case in classification cases. In essence, the dispute is about the compensation Mr. Levere was entitled to for the period he occupied the position. I have concluded that the Local Appendix does not deprive the Board of jurisdiction to hear that claim on its merits.

Summary

In conclusion, the Board hereby dismisses the grievances as they relate to those aspects over which it has concluded it has no jurisdiction. The Board remains seized to deal with the grievances on those aspects over which it has concluded it has jurisdiction as set out in this decision.

Dated at Hamilton, this 28th day of March, 2001.