GSB#0742/00
UNION# 00B299
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Boyer)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of the Environment)
Employer
BEFORE Randi H. Abramsky Vice-Chair
FOR THE GRIEVOR Don Martin Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER Carol Ann Witt Counsel Legal Services Branch Management Board Secretariat
HEARING October 18, 2001.
AWARD
At the start of the hearing, the Employer raised a preliminary objection, contending that the grievance should be dismissed on the basis that it raises, in reality, a classification issue over which the Board no longer has jurisdiction.
The grievance, dated June 5, 2000, alleges a violation of Article 8.1.1 of the collective agreement. It reads as follows:
Statement of Grievance
Under Article 8.1.1 of the collective agreement where an employee is assigned temporarily to perform the duties for a period in excess of five (5) consecutive working days shall be paid accordingly. The work that I am undertaking is not defined in my present job spec, thus indicating that I am indeed performing duties of the EO4 job spec which is a classification with a higher salary maximum.
Settlement Desired
That I be compensated for this work back to September of 1999 with lost wages and interest.
The Facts
The grievor’s home position is Environmental Officer 2 (EO 2). Under a settlement agreement between the parties in September 1997, the grievor was assigned to the position of EO 2 and agreed that he would not apply for other jobs, including EO 4 jobs, or seek the classification of an EO 4, for a period of two years.
In September 1999, upon the expiry of the two-year period, the grievor filed a classification grievance. It states:
Statement of Grievance
I grieve that my present job classification (EO 2) is inaccurate and incomplete and does not reflect my present job functions.
Settlement Desired
That I be re-classified to an appropriate job classification (EO4). Any increase in pay be paid with full retroactivity, including interest.
The September 1999 classification grievance proceeded to Stage 2 and is currently pending before the Joint System Subcommittee (JSSC). Pursuant to Article 22.12.2 of the collective agreement, a classification grievance which is not resolved by the end of Stage 2 “may be referred to the Joint System Subcommittee (JSSC) provided in Appendix 7 (Classification System Overhaul) of this Agreement, for final resolution.”
Appendix 7, Classification System Overall, states, in pertinent part, as follows:
(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.
On June 5, 2000, the grievor filed the instant grievance concerning Article 8.1.1, which covers the period September 1999 through June 2000. On June 12, 2000, the grievor was directly assigned to a temporary EO 4 position for a six-month period. That assignment was later extended until July 20, 2001.
The grievor was off on vacation from July 16, 2001 until July 30, 2001, and on August 7, 2001, he filed another grievance alleging a violation of Article 8.1.1, which states as follows:
Statement of Grievance
Under Article 8.1.1 of the collective agreement where an employee is assigned temporarily to perform the duties for a period in excess of five (5) consecutive working days, he shall be paid accordingly. The work that I am undertaking is not defined in my present job spec, thus indicating that I am indeed performing duties of the EO4 job spec, which is a classification with a higher salary maximum.
Settlement Desired
That I be compensated for this work back to July 20, 2001 with any lost wages and interest.
At the arbitration hearing, the grievor testified that the day following his filing of this grievance, on August 8, 2001, his duties which, in his view, had been EO4 duties were substantially changed. Although he would not acknowledge that he was assigned to EO2 duties, he acknowledged that they were no longer EO 4 duties after that date.
Arguments of the Parties
A. The Employer
The Employer asserts that this Board has no jurisdiction to decide the instant grievance because the June 5, 2000 grievance alleging a violation of Article 8.1.1 is, in reality, a disguised classification grievance. It submits that the grievor has had an ongoing complaint, since at least 1997, that the work assigned to him is EO 4 work. It contends that the Article 8.1.1 grievance is another, indirect, method of trying to achieve the same result as his classification grievance.
In support of its position, the Employer cites to OPSEU (Aitken et al.) and Ministry of Health, GSB No. 678/87 (Gorsky) and OPSEU (Rosamond) and Ministry of Citizenship, Culture and Recreation, GSB No. 2086/96 (Leighton).
The Employer also relies on the language of Article 22.12 of the collective agreement as well as Appendix 7 which states that the JSSC is to “review and decide on all complaints or differences involving allegations of improper classification.” It submits that the substance of the grievor’s complaint is a classification matter - whether the type of work assigned to him is that of an EO 2 or that of an EO 4.
In the Employer’s view, OPSEU (Barnier et al.) and Ministry of Finance, GSB No. 1062/98 (Abramsky) is distinguishable on the basis that the Article 8.1.1 claim there involved specific additional duties, for a discreet period of time, and there was no classification grievance pending at the time. The Employer argues that although the period of the grievor’s Article 8.1.1 claim is limited from September 1999 to June 2000, it is only so limited because of the agreement which precluded such claims at the front end, and his assignment to an EO 4 position at the rear end. Otherwise, the Employer asserts, his claim would be ongoing, as evidenced by his August 7, 2001 grievance alleging a violation of Article 8.1.1 immediately after the period that his assignment to the EO 4 position ended.
The Employer further contends that the grievor’s Article 8.1.1 claim could not be decided without deciding the classification issue. It asserts that the same kind of analysis that would be required in his classification grievance would be required in his Article 8.1.1 claim – specifically, a detailed look at the position specification for EO 2 compared to EO 4 and a detailed review of what he was assigned to do.
Accordingly, the Employer asserts that because this grievance is really a classification issue, the Board no longer has jurisdiction to decide the matter and it must be dismissed.
B. The Union
The Union asserts that the grievor’s Article 8.1.1 grievance is a bona fide temporary assignment grievance and is not a classification grievance in disguise. The grievance, it asserts, is not seeking a change in classification but seeking monetary compensation for a defined period of time during which the grievor was assigned EO 4 duties. It submits that he is not seeking reclassification of his home position through this grievance, nor claiming that he was improperly classified. Instead, it argues that the grievance asserts that he was assigned the duties of a higher rated classification in violation of Article 8.1.1.
The Union submits that from 1997 on, the grievor began to have EO4 work assigned to him and for the specific period of September 1999 through June 12, 2000, he was assigned EO 4 duties. In its view, it is not necessary, as it was in Aitken or Rosamond, to determine if the grievor was properly classified. Instead, it submits that it is just a question of the duties assigned and whether they constitute EO 4 duties, regardless of the grievor’s classification. Under these circumstances, the Union contends that the fact that the grievor has also filed a classification grievance is irrelevant.
The Union submits that too broad an interpretation of what constitutes a “classification” grievance would undermine Article 8.1.1. It contends that this Board should not dismiss bona fide temporary assignment grievances as disguised classification grievances.
Decision
Based on the specific facts of this case, I conclude that the June 5, 2000 grievance is, in effect, a classification grievance over which the Board no longer has jurisdiction.
Section 52 (1) of The Crown Employees’ Collective Bargaining Act, reads as follows:
52(1) Classification issues – A provision in an agreement entered into that provides for he determination by an arbitrator, a board of arbitration or another tribunal of any of the following matters is void:
A classification system of employees, including a new classification system or amending an existing classification system.
The classification of an employee, including changing an employee’s classification.
Similarly, Article 22.12 of the parties’ collective agreement provides that while a grievor may grieve that “his or her position is improperly classified”, if the grievance has not been resolved by the end of Stage 2, it “may be referred to the Joint System Subcommittee (JSSC) provided in Appendix 7 (Classification System Overall) of this Agreement, for final resolution.”
In Aitken, supra, the grievance alleged that the grievor “was improperly placed in the pay scale of the OAG 8 schedule…” The board found that there was a dispute between the parties as to the grievor’s correct classification at the time of her appointment to an underfill position, and to resolve the pay scale issue, the Board would have to decide whether the grievor was properly classified as a Clerk General 2 at the time of her appointment, or that she should have been classified as a Clerk General 3. The Board concluded at p. 22:
It is difficult to see how a grievance that requires the determination of the 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 mis-classified, even if the ultimate issue cannot be decided without first determining such an issue.
The Board concluded that because it had to determine whether the grievor had been properly classified, it did not have jurisdiction to decide the grievance.
In Rosamond, supra, the grievance alleged that the employer had improperly downgraded her classification from an OAG-9 to an OAG-8, which adversely affected her bumping rights. The Union argued that the “pith and substance” of the grievance concerned her bumping rights, while the Employer maintained that it was a classification grievance. The Board dismissed the grievance, concluding at p. 7 that its determination “would require an examination of the job that the Grievor was doing before her classification was downgraded from an OAG-9 to an OAG-8, in order to decide the second issue of whether or not Ms. Rosamund had been denied her rights under Article 20.” The Board ruled 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’” and that there was “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.” (Decision p. 7)
The evidence here demonstrates that the grievor has had a long-standing and on-going dispute regarding the type of work assigned to him, specifically that it constitutes the more complex work of an EO 4. This dispute led to an agreement that the grievor was permanently assigned to an EO 2 position and would not seek other jobs, including an EO 4 position, or seek the classification of an EO 4, for a period of two years.
Immediately after that two-year period expired, on September 13, 1999, the grievor filed a classification grievance alleging that “his present job classification (EO 2) is inaccurate and incomplete and does not reflect my present job functions.” The June 5, 2000 grievance essentially asserts the same thing. It alleges that for the period “September of 1999” to the present “the work that I am undertaking is not defined in my present job spec, thus indicating that I am performing duties of the EO 4 job spec which is a classification with a higher salary maximum.”
There is no assertion of any new assignment or change in duties as of September 1999. Rather, the assertion is that the duties which were, and continued to be, assigned were the duties of an EO 4. The time period covered by the June 5, 2000 grievance is not reflective of any change in assignment but corresponds to the end of his two-year agreement and his assignment to an EO 4 position on June 12, 2000. On August 7, 2001, immediately after that temporary assignment ended, he filed another grievance alleging a violation of Article 8.1.1. Although the grievor testified, at the hearing, that the time period covered by his August 7, 2001 grievance ended on August 8, 2001 when his duties were changed, he did not admit that the duties he was assigned were EO 2 duties.
In my view, a number of facts are significant. The first is that the grievor has a classification grievance pending which covers the same time period as his Article 8.1.1 grievance and raises, in sum and substance, an identical allegation that the work he is being assigned is EO 4 work, not EO 2 work. There was no assertion of any change in duties. That fact distinguishes this matter from Barnier, et al. In that case, the employees were called upon to perform new, additional tasks due to the requirement that all properties be reassessed and the issue was whether that the performance of that additional work meant that they performed “all of the significant duties” a higher-rated classification. Here, in contrast, there is no assertion that the grievor’s work had changed. Instead, there was an ongoing contention that the duties regularly assigned to him were beyond the work of an employee classified as an EO 2 and constituted the duties of an EO 4. That is a classification issue.
In Aitken, supra, the Board determined at p. 22 that “classification grievances” include “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.” Likewise, in Rosamond, supra, the Board held that the grievance concerning bumping rights “would require an examination of the job that the Grievor was doing before her classification was downgraded from an OAG-9 to an OAG-8…”
In this case, a determination of whether the grievor was “temporarily” assigned to perform work that “is not defined in my present job spec, thus indicating that I am indeed performing duties of the EO 4 job spec” requires, in effect, a determination of his proper classification. Under the specific facts of this case, the issues raised in the June 5, 2000 grievance are identical to the issues raised in his classification grievance. Pursuant to Appendix 7, however, it is the JSSC, not the GSB, which must “review and decide on all complaints or differences involving allegations of improper classification.”
Counsel for the Union notes that caution must be exercised in this area if genuine “temporary assignments” are not to be swept under the classification grievance rubric. I agree. Each case must be carefully evaluated on its specific facts and bona fide temporary assignment grievances should not lightly be dismissed as disguised classification grievances.
But the specific facts in this case reveal an on-going concern by the grievor that the assignments regularly assigned to him constitute the work of an EO 4, not an EO 2. His concern, though phrased as a temporary assignment dispute, is that he is not properly classified as an EO 2. There was no assertion of any change in duties at any relevant time – just a dispute whether those duties are the work of an EO 2 or EO 4.
Accordingly, based on the specific facts of this case, I conclude that the June 5, 2000 grievance alleging a violation of Article 8.1.1 is, in reality, a disguised classification grievance over which this Board no longer has jurisdiction. The grievor’s proper avenue of redress lies with his grievance before the JSSC.
For the reasons set forth above, the Employer’s preliminary motion is granted and the grievance is dismissed.
Dated at Toronto, this 24th day of October, 2001.