GSB#2008-0656

UNION#2008-0542-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Burns et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Danny Kastner Paliare Roland Rosenberg Rothstein LLP Counsel

FOR THE EMPLOYER

Cathy Phan Ministry of Government Services Counsel

HEARING

January 20, 2010.

Decision

1The Employer has raised a preliminary objection, contending that the grievance should be dismissed on the basis that it is a classification grievance over which the Board does not have jurisdiction. The Union opposes the motion, asserting that the grievance concerns retroactive pay, not the grievors’ classification.

Facts

2On April 28, 2008, a group grievance was filed by six IRP Issuing Clerks with the Ministry of Transportation. The grievance states, in relevant part, as follows:

We grieve that our rights have been violation[sic], specifically but not exclusively of Articles 2 and 8 of the Collective Agreement by not being paid properly for performing the duties of the General Issuing Clerk, a higher classification…

The remedy sought was “full redress.”

3For the purposes of this motion, the parties agreed to the following facts, as set forth in the Union’s particulars:

1. The grievors are employed as International Registration Plan (IRP) Program Support Clerks and General Issuing Clerks in the Ministry of Transportation (MTO). Both are OAG9 positions.

2. In April 2008, at the time of filing the grievance, the grievors were employed as IRP Issuing Clerks, an OAG8 position.

3. Until November 3, 2008, the grievors were wrongly classified at the OAG8 level. The employer recognized the error and changed the grievors’ classification to OAG9 effective November 3, 2008.

4. Prior to the grievors’ reclassification, the employer had converted all other OAG8 IRP Clerks, throughout the MTO, to OAG9s. The Ministry provided retroactive payment of the difference between the classification salaries to all such employees, except the grievors.

As noted above, the Employer had reclassified all of the other OAG8 IRP clerks to OAG9s at the time of the grievance, which led the group to file the grievance on April 28, 2008. In November 2008, the Employer “recognized the error and changed the grievors’ classification to OAG9 effective November 3, 2008.” The other IRP Clerks, however, were provided retroactive payment of the difference between the classifications, but the grievors were not. The remedy sought, as stated in the Union’s particulars is “the difference between the OAG8 and OAG9 pay for the relevant period.”

Analysis

4The parties take divergent views on the nature of the grievance. In the Employer’s view, although the grievance alleges a violation of Article 2 (management rights) and Article 8 (temporary assignments), it is, in reality a disguised classification grievance. The Employer asserts that the Board would have to determine that the grievors were improperly classified at the OAG8 level and should have been classified at the OAG9 level, in order to provide them with the retroactive pay remedy they seek. In support of its position, the Employer cites to OPSEU (Boyer) and Ministry of the Environment (2001), GSB No. 0742/00 (Abramsky); OPSEU (Aiken et al.) and Ministry of Health (1993), GSB no. 678/87 (Gorsky); and OPSEU (Rosamond) and Ministry of Citizenship, Culture and Recreation (1998), GSB No 2086/96 (Leighton).

5The Union views the grievance as a pay and management rights issue – an assertion that they were not paid properly and that the Employer arbitrarily denied them the OAG9 pay given to other employees. The grievance, it asserts, arose because all of the other IRP Clerks had been reclassified by the Ministry, except the grievors. The Employer subsequently recognized its mistake and reclassified them, but denied them the same retroactive pay provided to the others. The Union submits that the grievance, which asserts “not being paid properly for performing the duties… [of the] higher classification” includes the issue of retroactive pay. The Union further asserts that the Board need not determine that the grievors were improperly classified because the Employer, itself, has recognized that and reclassified the grievors. The issue that remains, the Union asserts, is the Employer’s failure to pay the grievors retroactively as it did the other IRP Clerks. In the Union’s view, that was an arbitrary and discriminatory exercise of management’s rights, and the Board has jurisdiction. In support of its position, the Union cites to OPSEU (Gaffar) and Ministry of Transportation (2001), GSB No. 0434/95 et al. (Dissanayake).

6After carefully considering the grievance, facts and submissions of the parties, I conclude that the Employer’s preliminary motion must be denied.

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 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 a new classification system or amending an existing classification system.

2. 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.”

7The Board has held that it has no jurisdiction over grievances that require the Board to determine whether a grievor is properly classified, even though the grievance is not framed as a classification grievance. Re OPSEU (Aiken et al.), supra; Re OPSEU (Rosamond), supra; Re OPSEU (Boyer), supra.

8In contrast, based on the stipulated facts in this case, the Board would not have to determine whether the grievors’ were improperly classified as IRP Clerks. All the other IRP Clerks had been reclassified as OAG9s, except the grievors, which led to the instant grievance. The Employer then realized its mistake and reclassified the grievors to OAG9 positions. Consequently, the decision about the grievor’s classification has already been made by the Employer. The only inquiry is whether the Employer arbitrarily denied the grievors’ the retroactive pay that it provided to the other IRP Clerks. That is a matter clearly within the Board’s jurisdiction.

9This case is similar to the decision of Vice-Chair Dissanayake in OPSEU (Gaffar), supra. In that case, the grievor had applied for and won a competition which, at the time, was a promotion. Subsequently, his former position had been reclassified based on an order of the GSB (when it had jurisdiction to deal with classification grievances), and given a significantly higher rate of pay. The result was that the new wage rate for his former position was higher than the wages for his new position. What he believed to have been a promotion when he competed for and won the competition turned out, in fact, to be a demotion. Eventually, his new position was also reclassified and became higher paid than his former position, but the interim period from the date of his new position until it was reclassified was still in issue.

10The Board determined that this was not a situation, as in Re OPSEU (Aiken), supra, “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.” As the Vice-Chair concluded at par. 11:

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. Accordingly, the employer’s objection to the Board’s jurisdiction was dismissed.

11The same result applies here. The grievors, at this point, are not seeking reclassification. They have already been reclassified. The grievors are claiming that they are entitled to the same retroactivity as all the other IRP Clerks. The grievance concerns that issue, and it is an issue over which the Board has jurisdiction.