GSB# 2002-1806, 2002-1789, 2002-1985, 2002-1986, 2002-1989, 2002-1991, 2002-1992

UNION# 2002-0104-0002, 2002-0104-0004, 2002-0104-0005, 2002-0104-0006, 2002-0104-0007, 2002-0104-0013, 2002-0104-0014, 2002-0104-0015, 2002-0104-0016, 2002-0104-0017, 2002-0104-0013, 2002-0104-0019, 2002-0104-0012, 2002-0104-0010, 2002-0104-0008, 2002-0104-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Foreman et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of Education)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Nelson Roland Barrister and Solicitor

FOR THE EMPLOYER

Kelly Burke, Senior Counsel Meredith Brown, Counsel Management Board Secretariat

HEARING

October 7, 2004 & March 2, 2005.

Decision

The grievors are all unclassified Residential Counselor 2’s with the Ministry of Education. Their individual grievances allege that the Employer has violated Article 32.6.1 of the collective agreement “by failing to pay me the rate equivalent to the rate equivalent to the civil service classification for the work I am performing.” Article 32.6.1 provides as follows:

32.6 WAGES

32.6.1 The rate of the equivalent civil service classification shall apply. If there is no equivalent classification the rate shall be set by the Ministry and the Union shall have the right to negotiate the rate during the appropriate salary negotiations.

The Employer has raised a preliminary objection to the Board’s jurisdiction to hear these grievances. Specifically, it asserts that they are disguised classification grievances over which the Board has no jurisdiction.

Facts

The following facts were accepted for the purposes of the Employer’s preliminary motion. The Ministry operates a number of residential schools for students with developmental difficulties and disabilities, including deafness, blindness, learning disabilities, and attention deficient and hyperactive disorders. One of these schools is the Roberts/Amethyst School, located in London, Ontario.

The grievors are all unclassified Residential Counselor 2’s, employed on a seasonal basis, at the Roberts/Amethyst School. Article 32.2.1 of the collective agreement defines a seasonal employee as “an employee appointed for a period of at least eight (8) consecutive weeks to an annually recurring full-time position in the unclassified service in a ministry.”

It is the assertion of the Union that “contrary to Article 32.6.1, the wage equivalency must be, given the real duties of the grievors, that of those paid to the Child Care Worker (CCW 2’s) employed at the Roberts/Amethyst School along with the grievors.” It asserts that instead of being paid at the rate of classified Resident Counselor 2’s, the grievors should be paid the CCW 2 rate. That classification, in the Union’s view, is the “equivalent civil service classification” for the grievors.

The Employer asserts that the “equivalent civil service classification” under Article 32.6.1 for the grievors is the classified Residential Counselor 2 position. It disputes that the grievors perform duties equivalent to those of the CCW 2’s.

In its particulars to the Employer, the Union reviewed, in great detail, why it asserted that “the grievors’ duties encompass virtually the same duties of the CCW 2’s”, and in fact, exceeded them. It extensively went through the respective duties of the two positions, their mandates and purposes and their position specifications.

The Employer, in its reply to the Union’s particulars, viewed the two positions as significantly different, involving separate and distinct programs and job functions.

On October 1, 2002, close to the time that the instant grievances were filed, a number of classified Residential Counselor 2’s employed at the Roberts/Amethyst School filed classification grievances under Article 22.12 of the collective agreement, alleging that they perform “[the] work of a Child Youth Worker 2.” That matter is now pending before the Joint System Subcommittee (JSSC).

Article 22.12, Classification, provides that an employee who alleges that his or her position is improperly classified may file a grievance, but that if it is not resolved by Stage 2, it “may be referred to the Joint System Subcommittee (JSSC) provided in Appendix 7 (Classification System Subcommittee) of this Agreement, for final resolution.” Article 22.12.1 continues:

The JSSC may decide 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.

Appendix 7 of the collective agreement outlines the composition of the JSSC and its mandate to “review and decide on all complaints or differences involving allegations of improper classification.”

The parties created the JSSC after the Social Contract Act and amendments to the Crown Employees Collective Bargaining Act (CECBA) removed the jurisdiction of the Grievance Settlement Board (GSB or Board) to decide classification grievances. The relevant provisions of CECBA provide as follows:

Section 51. Classification grievances, restriction – An order of the Grievance Settlement Board shall not require the creation of a new classification of employees or the alteration of an existing classification.

(2) Same – An order of the Grievance Settlement Board shall not require a change to be made in the classification of an employee.

Section 52(1) Classification issues – A provision in an agreement entered into that provides for the determination by an arbitrator, 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.

Positions of the Parties

The Employer asserts that the grievances are, in fact, classification grievances over which the Board cannot assert jurisdiction. Though framed as a claim for wages under Article 32.6.1, the Employer contends that this is a “back door” to challenging the grievors’ classification and wage rate. It asserts that regardless of the Union’s characterization of the matter, the substance of the claim is that the grievors are performing the work of a different classification and should be paid accordingly.

The Employer argues that to uphold this grievance, the Board would have to find that the grievors are performing the work of a different classification. It asserts that the required analysis to determine the “equivalent classification” for wage purposes is a comparison of the job duties of the two positions, which is the exact same analysis required in classification grievances. It asserts that no matter how the grievance is framed, or characterized, or “dressed up” – it is a classification grievance.

The Employer submits that the Board has no jurisdiction to determine the grievors’ classification issues under the collective agreement and CECBA. The parties’ instead, have placed such disputes before the JSSC. In support of its position, the Employer cites to OPSEU (Aiken et al.) and Ministry of Health (1993), GSB No. 678/87 (Gorsky); OPSEU (Rosamund) and Ministry of Citizenship, Culture and Recreation (1998), GSB No. 2086/96 (Leighton); OPSEU (Boyer) and Ministry of the Environment (2001), GSB No. 0742/00 (Abramsky); OPSEU (Wilson) and Ministry of Transportation (2001), GSB No. 0147/95 (Dissanayake); OPSEU (Knapp) and Ministry of Solicitor General and Correctional Services (2000), GSB No. 3164/92 (Dissanayake).

The Employer further notes that the same issue – that the Residential Counselor 2’s at the Roberts/Amethyst School are performing the work of and should be paid as Child Care Worker 2’s – has been grieved by the classified Residential Counselors, and is currently pending before the JSSC. It submits that through that process, the grievors’ complaint about their work will be decided. It submits that the result there will apply to both the classified and unclassified Residential Counselor 2s.

Finally, the Employer submits that the purpose of Article 32.6.1 is to protect unclassified employees from being paid less than their classified counterparts. It asserts that this provision is not a license to pick and choose among the various classified positions and assert that any given one is the “equivalent civil service classification.” It argues that Article 32.6.1 does not provide a “loophole” to grieve classification issues before the GSB. To allow that result, in its view, would lead to the bizarre situation that unclassified employees could bring de facto classification grievances before the Board while the classified employees must go to the JSSC. If successful in their grievance, moreover, the result would be that the unclassified Residential Counselor 2’s would be paid more than the classified Residential Counselor 2’s.

The Union asserts that these grievances are not classification grievances at all. Instead, they raise a wage dispute regarding what is the “equivalent civil service classification” under Article 32.6.1. The issue, in its view, is what is the “equivalent civil service classification” for wage purposes only. The grievors do not seek to be reclassified or to change their classification. Instead, they only want to be paid properly, in accordance with the correct “equivalent civil service classification.”

The Union agrees that the determination of the “equivalent civil service classification” will involve a comparison of the duties and job specifications of the two positions, but asserts that this does not transform a wage dispute into a classification grievance. It contends that it is not taking the “back door” but the “front door” through Article 32.6.1. Article 32.6.1, it submits, provides an explicit right to be paid at the “equivalent civil service classification” rate. In its submission, its position is akin to an argument in the alternative – two separate ways, two separate rights to get the same result of higher pay. It insists that the rights are conceptually and legally different, and that the grievors are not seeking a reclassification of their position, or a new classification. Rather, they are seeking equal pay for equal work.

In support of its position, the Union relies on OPSEU (Barker et al.) and Ministry of the Attorney General (1993), GSB No. 2476/92 (Kaplan) and OPSEU (Yole) and Ministry of the Solicitor General and Correctional Services (2002), GSB No. 1004/95 (Briggs).

Decision

The Employer has moved to dismiss the instant grievances on the basis that they are, in reality, disguised classification grievances. It is undisputed that the GSB has no jurisdiction over classification grievances. What is vigorously disputed is whether these grievances are, in fact, disguised classification grievances or simply grievances regarding the “equivalent civil service classification” for determining the grievors’ proper wage rate.

The issue is significantly complicated by the Board’s jurisprudence. In OPSEU (Barker et al.) and Ministry of the Attorney General, supra, the Board was faced with a grievance by unclassified Court Constables under then Article 3.3.1 of the collective agreement, which is identical to Article 32.6.1 in the current collective agreement. Historically, the Court Constables had been paid at the OAG- 2 rate. The Employer then, after new contracts were signed, announced that the Court Constables would no longer be paid at the OAG-2 rate but would, henceforth, be paid at the Usher and Messenger classification rate, which reduced their hourly wage by approximately one dollar per hour. The stated reason for this change was a new law, which changed the grievors’ security duties. The Employer then reviewed the grievors’ remaining duties and determined that the class allocation that most correctly reflected their duties was that of Usher and Messenger.

The Employer raised two preliminary objections. The first was that the grievances were inarbitrable because they purported to challenge classification, and as unclassified employees the grievors were not entitled to do so. The Union argued that the grievances were about compensation, not classification. The Board agreed. It concluded, at p. 11:

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. …

The Barker decision was more recently followed by the Board in OPSEU (Yole et al.) and Ministry of the Solicitor General and Correctional Services, supra. This case involved grievances by unclassified Correctional Officer 1’s (CO1) under then Article 31.2.1, which, again, is identical to Article 32.6.1, alleging that the grievors should be paid at the Correctional Officer 2 rate because they were performing the full range of duties of the Correction Officer 2 classification. The Employer did not dispute the claim that the grievors were performing the full range of duties of the CO2 position.

The Employer in Yole raised a preliminary objection on the basis that the grievances were, at their core, classification grievances and therefore beyond the scope of the GSB. Relying on the Barker decision, the Board determined that the Employer’s preliminary objection must fail. After quoting the same portion of Barker as cited above, the Board concluded at p. 15-16:

That is precisely the case before me. These grievors are not asking to have their classification changed or modified. They merely grieve that they have not received wages at the appropriate rate of the equivalent civil service classification. I disagree with the Employer that a finding of arbitrability contravenes Section 52 of CECBA. I am not being asked to amend a classification system, create or amend a new classification, classify an employee or change an employee’s classification. I am being asked to determine if the wage rate of CO2 is the appropriate civil service equivalent for these grievors. Having found that the grievances at issue are not classification matters, the Employer’s submissions regarding the Social Contract have no application.

In the Vice-Chair’s view, none of the Employer’s contentions convinced her “that I should vary from Barker et al or that I should find it no longer applied.”

The Board has also determined, however, that it does not have jurisdiction over grievances which, in essence, raise classification issues, even though they are not framed or characterized as such. In OPSEU (Aiken et al.) and Ministry of Health, supra, the grievor alleged that she “was improperly placed in the pay scale of the OAG-8 schedule” and should have been placed at the top of that schedule. The basis for her allegation, however, was an alleged misclassification at the time she was hired into the position. The Employer argued that her grievance, though framed as a pay issue, was in substance a challenge to her classification at the time of her appointment. The Union asserted that the grievance did not concern classification, but placement on the OAG-8 grid at the time of her appointment. The Board determined that the grievance required the Board to determine if the grievor, at the time of her appointment, had been misclassified. It concluded 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 grievance, 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.

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.

Accordingly, the Board determined it did not have jurisdiction over the grievance.

The Aiken decision has been followed in other cases. In OPSEU (Rosamund) and Ministry of Citizenship, Culture and Recreation), supra, the Union characterized the grievance as involving the grievor’s bumping rights but the Board determined that the claim was, in fact, about her classification. The Employer had previously downgraded her position from an OAG-9 to an OAG-8 as part of a review of classifications following a merger between two ministries. That downgrade then precluded her from bumping into the position she wanted when she was subsequently surplussed. The Board, at p. 7, determined that the grievance “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 [bumping] rights under Article 20.” In the Board’s view, that was a complaint about her reclassification, over which the JSSC alone had jurisdiction.

In OPSEU (Boyer) and Ministry of the Environment, supra, the grievor alleged a violation of Article 8.1.1 of the collective agreement, which is the acting pay provision in regard to temporary assignments lasting for more than five working days. Specifically, the grievor alleged that the Employer had assigned him to perform the duties of an Environmental Officer 4, a higher rated classification. The grievor had also filed a classification grievance alleging the same thing, which was pending before the JSSC, and had earlier made similar claims.

The Employer moved to dismiss the grievance as a disguised classification grievance. The Union asserted that it was not a classification grievance, but a bona fide temporary assignment grievance. It noted that the grievor was not seeking a change in his classification or a reclassification, nor was he claiming that he was improperly classified. Instead, he was seeking monetary compensation for the period he was performing the work of an EO 4.

Under the specific facts of that case, I determined that the grievance was, in effect, a classification grievance over which the Board no longer had jurisdiction. There was no allegation of any change in his duties. Instead, I concluded that the grievance was part of “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.” I determined that “[h]is concern, though phrased as a temporary assignment dispute, is that he is not properly classified as an EO 2.”

Likewise, in OPSEU (Wilson) and Ministry of Transportation, supra, the grievance was characterized as a retroactive compensation matter, not a classification dispute, since the grievors were not seeking reclassification. The Employer had already reclassified the grievors but it did not grant any retroactivity to its decision. The result was that for a period of four years, the grievors were doing the same work as the higher rated classification but were paid less. The Board ruled that the grievance was, in effect, a classification grievance. It concluded:

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.

The key in this case is to determine which line of cases applies – whether the grievances, at their core, raise a classification issue or are simply a wage dispute concerning which civil service classification is the “equivalent” one to determine the grievors’ proper wage rate.

After much consideration, it is my view that the grievances, at their core, assert that the grievors are improperly classified as Residential Counselor 2’. Although they are not seeking reclassification or any change to their classification, their grievances allege that they are, for pay purposes, misclassified as RC 2’s. They assert that they are not being paid in relation to their actual duties, which are the same as the higher-rated classification – not their own classification of RC 2.

The grievances require the Board to evaluate whether the grievors are performing the work of an RC 2 (their own classification) or the work of a CCW 2 (the higher-rated classification). As determined by the Board in Wilson, supra:

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.

The same thing is true here. Though phrased as a matter of equivalency under Article 32.6.1, the Board would have to determine whether the classification allocated by the employer to the grievors’ position during the period in question was proper. That is identical to the claim of the classified RC 2’s presently pending before the JSSC.

If the Union’s position on Article 32.6.1 is accepted, it could potentially create significant chaos in relation to the classification system used throughout the Ontario public service. First, it risks inconsistent results between the Board and the JSSC. The Board could accept that the unclassified RC 2’s perform the work of the CCW 2s while the JSSC could rule the opposite in relation to the classified RC 2’s, or vice versa. If that happened (or even if the JSSC made no ruling), it could result in a situation in which the unclassified and classified employees in the same classification would be paid at different rates. There is no assertion that the two groups perform different duties. On the contrary, the evidence was that they have the same position description.

Further, if allowed, any unclassified employee could grieve that, in their particular circumstances, the true equivalent civil service classification is X, Y or Z, not their actual classification. An employee could pick and choose from among classified positions their personal “equivalent” under Article 32.6.1. This could lead to unclassified employees in the same classification being paid a variety of different wages. For example, unclassified Residential Counselors in a different residential school may determine that the equivalent civil service position for them is not the RC 2 classification or even the CCW 2 classification, but the CCW 3 classification, or something else entirely. Unclassified employees throughout the province could grieve that their “equivalent civil service classification” was not the classification assigned to them, but some other position. Clearly, this was not the intent of Article 32.6.1 and could not have been anticipated by the parties.

The purpose of Article 32.6.1 appears to be to protect the unclassified employees from being paid less than their classified counterparts, and to require the employer to negotiate the wage rate for employees where there is no “equivalent civil service” position. Given the importance of the classification system and its significance in regard to employee wages, I cannot conclude, without some clearer indication of the parties’ intent, that Article 32.6.1 was meant to provide unclassified employees with a means to challenge the classification assigned to them by the Employer for pay purposes.

Further, the collective agreement specifically sets out the wage rates for employees in the Institutional and Health Care Bargaining Unit, and provides that those wage rates apply “to employees with an appointment status of classified and unclassified.” It specifically lists the wage rate to be paid to classified and unclassified Residential Counselor 2’s. What the grievors seek, through Article 32.6.1, is to have the Board determine that a different wage rate should apply to them, not the wage rate negotiated by the parties. In my view, this would result in an impermissible amendment to the collective agreement.

The collective agreement also specifies the wage rates for “classifications in the unclassified service, for which there are no equivalent classifications in the Civil Service….” It then lists those positions for which there is no equivalent civil service classification and the negotiated wage rate for those positions. It seems clear, then, that the words “equivalent civil service classification” under Article 32.6.1 refers to the “equivalent” or counterpart classified position.

The situations in Barker, supra, and Yole, supra, are distinguishable. In Barker, the Employer changed the duties of the position and then determined, unilaterally, that the “equivalent” civil service position was a lesser paid one. Significantly, there was no equivalent classified civil service position for the Court Constables. In those circumstances, the Board held that the grievors could challenge the Employer’s determination of what constituted the “equivalent” civil service position for pay purposes and that their grievance was not a classification matter.

In Yole, supra, the parties’ agreed that the grievors, unclassified CO 1’s, were performing all of the duties and responsibilities of the CO 2 classification. In effect, the parties agreed that the CO 2 position was the “equivalent” civil service classification for their position yet the Employer continued to pay them as CO 1’s.

The situation here is significantly different. Here, unlike in Barker, the grievors do have an “equivalent civil service classification” – specifically the classified RC 2 position. Here, unlike in Yole, there is a significant dispute between the parties regarding the duties of the grievors and whether they perform the work of RC 2’s or CCW 2’s. Although there is some broad language in Barker (upon which Yole relies) to support the Union’s position here, I cannot conclude that Article 32.6.1 allows the grievors to, in effect, challenge the classification allocated to them by the Employer for pay purposes, for that is exactly what they are doing.

The Union asserts that Article 32.6.1 provides a separate legal right – distinct from a classification matter – to achieve the same result of equal pay for equal work. Certainly, employees may have multiple rights under a collective agreement or statute, which may lead to the same outcome through alternative means. The problem here, however, is that CECBA has prohibited the Board from determining classification issues. In my view, even though the grievors are not seeking a change in their classification and are only seeking monetary relief, they are challenging the classification allocated to them by the Employer for pay purposes. In my view, the argument that Article 32.6.1 allows the grievors to assert that their own classification is not the proper “equivalent civil service classification” for pay purposes – and that the equivalent one is another classification - is indeed a “back door” to having the Board determine their proper classification. If accepted, it would create a loophole that would allow unclassified employees to bring what is, in effect, classification disputes before the Board. Yet the parties have agreed that “all complaints or differences involving allegations of improper classification” are to be decided by the JSSC.

The grievors, moreover, will not be left without a remedy in this matter. The classified RC 2’s at the Roberts/Amethyst School have a classification grievance before the JSSC. Any determination made by that committee will be binding on the unclassified employees at that school as well.

Conclusion

For all of foregoing reasons, I conclude that the grievances, at their core, raise classification issues over which the Board does not have jurisdiction. Accordingly, the grievances must be dismissed.

Issued at Toronto this 31st day of March, 2005.