GSB# 2005-3639
UNION# 2005-0605-0012
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Larochelle)
Union
- and -
The Crown in Right of Ontario (Ministry of Natural Resources)
Employer
BEFORE
Randi H. Abramsky
Vice-Chair
FOR THE UNION
Mark Barclay Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Michelle Dobranowski Counsel Ministry of Government and Consumer Services
HEARING
March 25, 2008.
Decision
On December 12, 2005, the grievor, Larry Larochelle, filed a grievance alleging that he has "not been properly compensated for wages owed to my position as Air Engineer 4 including retro and adjustments in Air Engineer Special Case Submission during 2005 collective bargaining." The Employer denies that it has improperly compensated Mr. Larochelle.
Facts
The parties presented an Agreed Statement of Facts, which provides as follows:
The grievance dated December 12, 2005 states: "I grieve that I have not been properly compensated for wages owed to my position as Air Engineer 4 including retro and adjustments awarded in Air Engineer Special Case Submission during 2004 collective bargaining.
As of January 1, 2004, the grievor held the position of Air Maintenance Engineer and was classified as an Air Engineer 4 (AE4).
The grievor was at the maximum of the AE4 classification and was paid at the weekly rate of $1,129.98 (approximately $58,758.96/year)(page 273 of the Collective Agreement in force for the period January 1, 2002 to December 21, 2004).
On August 3, 2004, the grievor commenced an acting assignment in the position of Maintenance Production/Planner classified at the OST18 level. This position was a non-bargaining unit position.
Effective the start of the assignment, August 3, 2004, the grievor's salary was increased to $60,754.40. This rate was determined by applying a 3% promotional increase to the grievor's rate of pay in accordance with the OPS Pay on Assignment Operating Policy.
In January 2005, the grievor participated in a competition for a one-year temporary assignment in the Maintenance Production/Planner position and was the successful candidate. As a result, the grievor remained in this position until he returned to the AE4 position on November 1, 2005.
In April 2005, the Maintenance Production/Planner position was reclassified to the TEN18 level. This reclassification resulted in another 3% pay increase to the grievor's salary in accordance with the promotional rules of the Pay on Assignment Operating Policy. This reclassification was effective April 1, 2005 and the grievor's salary was adjusted to $62,577.03 to reflect the promotional increase.
While acting in the position of Maintenance Production/Planner the grievor was also eligible for the MCP Pay for Performance program for the period from August 3, 2004 to March 31, 2005. The grievor received a rating of "Met All" and was awarded a 5% salary increase. Therefore effective April 1, 2005 the grievor's salary was further increased to $64,590 to reflect the P4P merit.
During the time period the grievor was acting in the Maintenance Production/Planner position, he received increases pursuant to the Pay on Assignment Operating Policy and the Pay for Performance Operating Policy but was not paid the increases set out in the OPSEU collective agreement which would have applied to his AE4 home position.
Through collective bargaining, the parties negotiated a special classification adjustment of a 5% increase to the pay rate for the Air Engineer class series for 2005. This special adjustment was in addition to the 2% across the board increase negotiated for all OPSEU employees. This special adjustment is contained in Appendix UN7 of the collective agreement.
Upon the grievor's return to the AE4 position on November 1, 2005, he returned to the maximum pay rate of the classification which was $1,210.21 per week (approximately $62,940.92 per year)(see page 365 of the current collective agreement). The Pay on Assignment Operating Policy stipulates that upon reassignment to one's home position, an employee must receive the rate of pay he would have attained if the acting assignment had not taken place.
On May 12, 2007, the grievor permanently left his bargaining unit position and moved to a non-bargaining unit position of Senior Base Engineer at the TEN18 level.
Positions of the Parties
For the Union
The Union, on behalf of the grievor, asserts that he should have received the 5% pay adjustment negotiated for the Air Engineers in January 2005 while he was serving in an the acting position outside of the bargaining unit. The grievor did not receive the benefit of this increase until he returned to his home position as an AE4 in November 2005.
For the Employer
The Employer asserts that the issue raised in this case was already decided by the GSB in OPSEU (Cartwright et al.) and Ministry of Community Safety and Correctional Services (2005), GSB No. 2002-1457 (Abramsky), and was reaffirmed in OPSEU (Herries et al.) and Ministry of Natural Resources (2006), GSB No. 2004-0310 (Johnston). It asserts that under the principles established in Blake and Amalgamated Transit Union (1988), GSB No. 1276/87 (Shime), this board is bound by the jurisprudence and the same result must apply.
Analysis
This case is controlled by OPSEU (Cartwright et al) and Ministry of Community Safety and Correctional Services, supra. The issue raised is identical and the same result applies.
In Cartwright, the grievors were Correctional Officers who had temporary assignments as Operational Managers, positions outside the bargaining unit. During their acting assignment they did not receive a substantial (8.69%) wage increase negotiated for Correctional Officers. Instead, their pay increases were tied to their acting assignment through the Pay on Assignment Operating Policy and Pay for Performance Policy. This resulted in their being temporarily financially disadvantaged by their acting assignment since they actually made less as Acting Operational Managers than they would have as Correctional Officers.
The Union challenged this, asserting that the grievor's should have been given the Correctional Officer wage increase while in the acting assignment. The Board rejected that contention determining that "wage rates [are] for work performed in a classification." It continued at p. 11-12:
One must perform work in the classification in order to receive pay for that work. When an employee is on a temporary assignment, they are no longer performing work in their home position, but are working in another classification, and their pay is tied to that classification…
Essentially, when the grievors were temporarily assigned to acting operational manager positions, they were not working as CO2s, and were not entitled to receive the negotiated wage increases for CO2 work under Article COR 16. Even though the collective agreement continued to apply to them, they were not entitled to benefit from that provision since they did not perform CO2 work.
The same is true here. While the grievor was working in the Maintenance Production/Planner position, he was not working as an AE4 and was not entitled to receive the negotiated wage increase for the AE4 position. His salary and increases were tied to the acting position, not his home position, during the acting assignment. The evidence establishes that the grievor received pay adjustments and merit increases tied to the Maintenance Production/Planner position. He benefited from the increase in the AE wage rates upon his return to his home position.
Accordingly, there has been no violation of the collective agreement. The grievance is dismissed.
Issued at Toronto this 3rd day of April 2008.