GSB #0434/95, 0917/95, 1039/95, 2118/95, 0435/95, 0752/95, 0723/95
OPSEU#95C733, 95E024, 95E091, 96B050, 95C734, 95C932,
95C929, 95C930, 95C931, 95933, 95C910, 95C911
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Gaffar 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 Officier
Ontario Public Service Employees Union
FOR THE Kelly Burke, Counsel
EMPLOYER Legal Services Branch
Ministry of Community and Social Services
HEARING DATE March 14, 2001.
DECISION
This decision relates to the following files:
Arsenault, Paul (Grievance dated June 5, 1995)
Budgell, Clifford (Grievance dated May 8, 1995)
Hume, Ron (Grievance dated September 15, 1995)
Gaffar, Abdool (Grievance dated February 6, 1995)
Steele, Gordon (Grievance dated June 15, 1995)
Parker, peter (Grievance dated June 27, 1995)
Pearson T. (Grievance dated May 18, 1995)
Merante, Anthony (Grievance dated May 5, 1995)
Cayes, David (Grievance dated May 13, 1995)
Ghazarian, Dikran (Grievance dated May 5, 1995)
Hyde, Brian (Grievance dated May 5, 1995)
Wismayer, William (Grievance dated May 5, 1995)
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:
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by the Union for which a decision of the Grievance Settlement Board has not been rendered by August 1, 1993 are withdrawn effective August 1, 1993 and the parties shall take no steps to further any such grievance or any hearing of such a grievance and shall take no steps to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.
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.
For the purposes of this agreement, and, in particular paragraphs 5 and 6 above, “classification grievances” includes, but is not limited to,
all grievances claiming improper classification of persons classified within the Office and Administration Group of the classification system of the Employer.
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
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:
A classification system of employees, including creating a new classification system or amending an existing classification system.
The classification of an employee including changing an employee’s classification.
At the hearing the parties agreed to treat Grievor Gaffar’s circumstances as representative of all of the grievances herein and to argue the preliminary issue on the basis of Mr. Gaffar’s case. The following “Agreed Statement of Facts” was filed with regard to the Gaffar grievance:
As of December 1, 1989, Mr. Gaffar was in the position of Senior Construction Technician employed in the central region Construction Office, classified as Technician 1 Construction. He grieved the classification of this position in January 1990.
On June 10, 1991, he was successful in a competition for the position of Senior Inspector classified as Highway Construction Inspector 2.
a. On January 9, 1991, the Civil Service Commission approved the new Senior Technician Transportation Construction standard pursuant to a Grievance Settlement Board (GSB) award that directed the Employer to create a new classification for the position of Senior Construction Technician to properly reflect the grievors’ duties and responsibilities. Consequently, the position of Senior Construction Technician became Senior Technician Transportation Construction with the classification of Senior Technician Transportation Construction (STTC). Attached at TAB 1 is a copy of the award dated January 22, 1990.
b. On May 16, 1994, the Labour Relations Tribunal established rates for the new STTC classification retroactive to January 9, 1991. Attached at TAB 2 is a copy of the award.
c. On August 24, 1994, OPSEU and Management Board Secretariat signed Memorandum of Settlement regarding the wage rates and implementation of the STTC classification. Attached at TAB 3 is a copy of the Memorandum of Agreement.
d. Mr. Gaffar was paid pursuant to the STTC Berry award effective December 21, 1989 (20 days prior to the date his grievance was filed) until June 10, 1991 when he assumed the position of Senior Inspector classified as Highway Construction Inspector 20 which was not covered by the STTC Berry award.
- a. On January 26, 1993, the Civil Service Commission approved the new Quality Assurance Inspector (QAI) classification standard pursuant to a Grievance Settlement Board (GSB) award that directed the Employer to create a new classification for the Senior Inspector position (previously classified as Highway Construction Inspector 2) to properly reflect the grievor’s duties and responsibilities. Consequently, the position of Senior Inspector became Quality Assurance Inspector with the classification of Quality Assurance Inspector (QAI). Attached at TAB 4 is a copy of the GSB award.
b. On January 12, 1995, the Labour Relations Tribunal established rates for the new QAI classification retroactive to January 26, 1993.
c. On January 13, 1995, OPSEU and Management Board Secretariat signed Memorandum of Settlement regarding the wage rates and implementation of the QAI classification. The Memorandum is attached at TAB 5.
d. Mr. Gaffar was paid pursuant to the QAI Berry award effective January 26, 1993, the date on which the new class standard became effective.
- Mr. Gaffar filed the present grievance dated February 6, 1995 alleging “the employer violated the collective agreement in regards to promotions and/or has violated the memorandum of Settlement dated August 24, 1994.” Mr. Gaffar’s grievance is attached at TAB 6 along with the other grievances filed by the employees identified above.
(Attachments omitted)
Union counsel stated that evidence will be led to show on the merits of Mr. Gaffar’s grievance, that while his grievance filed in January 1990 was still going through the grievance procedure, he successfully competed for the position of Senior Inspector classified as Highway Inspector 2. When he assumed this new position on June 10, 1991, it represented a promotion for Mr. Gaffar because his new position had a higher pay rate than his former position. However, in due course his grievance of January 1990, along with the grievances of some 35 others, went before the GSB for hearing. The Board determined that the grievors’ positions had been improperly classified and issued a “Berry order” that they be properly classified. In order to comply with the Board order, the employer created a new classification for Mr. Gaffar’s former position, Senior Technician Transportation Construction.
As the parties were unable to agree upon the wage rates for this newly created classification, wage rates were awarded by a “Section 5.8" arbitration award. It represented a substantial wage increase for Mr. Gaffar’s former position. The result was that the new wage rate for his former position was higher than the wages for his new position. In other words, what he believed to be a promotion when he competed for and won the competition, turned out in fact to be a demotion. Following the reclassification of his former position, the Employer granted to Mr. Gaffar the benefit of the increased wage rate retroactively for 20 days prior to June 10, 1991 - the date of his promotion. Subsequently, Mr. Gaffar’s new position was also reclassified with retroactivity to January 1993. As a result it became higher paid than the new rate for his former position. At issue is the interim period between the date of his promotion June 10, 1991 to the date his new position was reclassified. The union claims that due to the employer’s failure to properly classify his former position initially, the grievor experienced a demotion during that period. The union claims that had the employer properly classified his former position initially, Mr. Gaffar would not have competed to win a demotion with lesser pay.
In this grievance, Mr. Gaffar 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. Gaffar 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. Gaffar 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 union submitted that this aspect of Mr. Gaffar’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. 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. Gaffar 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. Gaffar’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. Gaffar’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. Gaffar 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
For the foregoing reasons, The Board concludes that the employer’s objection to the arbitrability of the instant grievances must be dismissed. The Board finds that it does have jurisdiction to deal with the grievances as described in this decision, and remains seized for that purpose.
Dated at Hamilton, this 28^th^ day of March, 2001.