GSB#2007-2363

UNION#2007-0652-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Monahan)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Mark Barclay Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Cathy Phan Ministry of Government Services Counsel

HEARING

February 11, 2010.

Decision

1The grievance in this matter reads as follows:

Statement of Grievance

I grieve management has contravened Article 2 of the collective agreement. I grieve management has exceeded their management rights by creating a job spec (PDR) that has a higher level of responsibility than the associated classification. The new job spec (PDR) refers to responsibilities that I have not been associated with before. I have yet to receive training for the new duties associated with the job spec.

Settlement Desired

I want all references to fleet and facilities eliminated from my job spec. I want Instructor certification for forklifts removed from part 4 of the job spec. I would like to be paid top rate for a Clerk 7 Supply retroactively from June 22, 2007 until job spec has been fully clarified.

Without prejudice to the employer’s position that this grievance is inarbitrable, the parties agreed that Article 22.16 of the collective agreement applies to this proceeding. Article 22.16 contemplates my issuing a “succinct decision” (Article 22.16.2) that has no “precedential value” (Article 22.16.7). The parties have not asked for a decision without reasons, however.

2Having considered the parties’ evidence and argument, for reasons that follow I find that the grievance must be dismissed.

3The grievor has worked for the Ministry for nearly 30 years in various locations. For the last several years he has worked as a Clerk 5 Supply in Chapleau. In May 2007 he was advised by letter that he would thereafter report to the Fire Management Supervisor at the Chapleau Fire Management Headquarters. The letter said that his Position Title, Classification, Work Location and “Job Duties/Responsibilities” would remain the same. Shortly thereafter he was given a description of his position in the form of a Position Description Report (“PDR”) with an effective date of June 15, 2007. The grievor’s unchallenged evidence is that this PDR describes some duties that he had not previously performed in Chapleau, including clerical duties relating to facilities and fleet maintenance that he has been required to perform since then.

4The employer says this dispute cannot be arbitrated by this tribunal because section 52 of the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, C. 38 as amended, and Article 22.12 of the collective agreement together preclude this Board from entertaining a grievance that an employee’s position has been improperly classified. I share the employer’s impression that, as it was initially framed, this grievance seemed to be that the grievor’s current duties comprise a position for which Clerk 5 Supply is not the correct classification. That is a dispute that this Board has no jurisdiction to determine, as the union acknowledges.

5The union says that this is not a dispute about whether the grievor’s position has been improperly classified but, rather, a grievance that the employer has breached article 8 of the collective agreement by, in effect, transferring the grievor into another position in a classification with a higher salary maximum and then failing to pay him the higher rate associated with that position’s classification. Article 8 provides:

Article 8 – TEMPORARY ASSIGNMENTS

8.1.1 Where an employee is assigned temporarily to perform the duties of a position in a classification with a higher salary maximum for a period in excess of five (5) consecutive working days, he or she shall be paid acting pay from the day he or she commenced to perform the duties of the higher classification in accordance with the next higher rate in the higher classification, …

Employer denies that this argument properly characterizes either the grievance or the facts, but does not object to my considering it.

6Given the limitation on this Board’s authority to determine whether a position has been correctly classified, for a grievance framed in this way to succeed the union would have to demonstrate not only that the employer had temporarily assigned the grievor to a position other than his own, but also that temporary position was one that the employer had assigned a classification with a higher salary maximum than the grievor’s.

7It is undisputed that since 2007 the grievor has been required to perform clerical functions relating to fleet and facilities that he had not previously been required to perform in his position in Chapleau. It is not clear whether these duties were new to his position’s description or merely new to him: neither party put before me whatever position description preceded the current PDR. The evidence did not establish who performed these duties in Chapleau before the grievor did. There is no suggestion that by requiring the grievor to perform these duties the employer effectively assigned the grievor, temporarily or otherwise, to that person’s position. In any event, there is certainly no evidence that the assignment of these duties to the grievor was ever said or intended to be temporary. What the employer did simply cannot be characterized as a temporary assignment. Accordingly, there cannot have been a breach of Article 8.

8For these reasons this grievance is hereby dismissed.