GSB#2010-1407, 2010-1846, 2010-2901, 2010-2905, 2010-2906, 2010-2907, 2010-2908,

2010-2909, 2010-2910, 2010-2911

UNION#2010-0430-0002, 2010-0430-0004, 2010-0468-0013, 2010-0468-0014,

2010-0468-0015, 2010-0468-0016, 2010-0468-0017, 2010-0468-0018, 2010-0468-0019,

2010-0468-0020

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Metcalfe et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Barry Stephens

Vice-Chair

FOR THE UNION

Stephen Giles Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Labour Practice Group Counsel

HEARING

December 19, 2011.

Decision

1The grievances in this case relate to the employer’s decision to reorganize the workplace and change the classification of the grievors. The parties proceeded by way of agreed statement of fact, as follows:

ASF Anson/Metcalfe

1. The grievors are employees of the Government of Ontario

2. The grievors worked for either the Ministry of Transportation or the Ministry of Health & Long-Term Care.

3. The grievors provided subject mater expert telephone help-line support to their respective Ministries.

4. The employer decided to reorganize a portion of its operations.

5. At the time of the reorganization, the positions the grievors worked in were classified at the OAG 12 level.

6. A component of this reorganizing was the consolidation of certain parts of various ministries under the umbrella of Service Ontario in the Ministry of Government Services.

7. As part of this reorganization, the employer created a standardized pay grid classification for positions brought under the Service Ontario umbrella. These classifications were Customer Services Representative (CSR) 1, 2, 3 & 4.

8. In October 2009, the employer announced this reclassification to the union.

9. The parties entered into a Memorandum of Agreement (MOA) on December 15, 2009.

10. In January 2010, the employer commenced the reorganizing of a portion of its operations.

11. A memorandum was issued by the Ministry to its staff on January 5, 2010 announcing the reorganization.

12. A joint Memorandum and an Employer Q&A were issued in February 2010.

13. In March 2010, the grievors were all reclassified to the position of CSR3. The CSR3 pay grid is roughly equivalent to the OAG10 pay grid. The grievors are covered by the terms of the December 2009 MOA.

14. In April/May 2010, the grievors filed variously worded grievances alleging the actions of the employer during this reorganization violated the collective agreement and poisoned their work environment.

2It is to be noted that the grievors allege that the reclassification of their positions, in addition to leading to there-circling of their wages, has created a poisoned work environment that entitles them to compensation. The union alleges that the poisoned work environment arises from the employer’s communication in the period prior to the implementation of the reorganization.

3The union provided two examples of the employer’s communication. The first was a Question and Answer document, issued in advance of the implementation of the reorganization. Question 11 addressed the impact of the pending reorganization on employees in the following terms:

“Q11. Will I be paid more to provide these services?

A11. Where revisions to job specifications are required, we will follow the normal evaluation process to determine if adjustment to pay grades are required. At this time, we do not anticipate any changes to current pay rates.”

4The second communication was a letter to employees advising them of the implementation date for the reorganization, and the fact that the reorganization required a change to the reporting structure. The letter contained the following paragraph:

“Please note as a result of this announcement that there will be no changes to the existing terms and conditions of employment aside from the above mentioned. Also note that no physical relocations are involved in this announcement.”

5The employer raises two preliminary to objections the Board’s jurisdiction to hear the grievance. First, the employer asserts that the essence of the grievance is that the employees have been improperly classified. Therefore, the grievance is a classification grievance, for which no remedy is permitted under s.51 of the Crown Employees Collective Bargaining Act (CECBA).

6The employer’s second preliminary objection is that the matter in dispute has already been settled between the parties as a result of a Memorandum of Agreement with respect to the reorganization dated December 15, 2009, which was signed prior to the distribution of the documents cited by the union. The employer points out that the MOA stipulates that employees affected by the reorganization are red-circled, which is a substantive benefit not required by the collective agreement or otherwise by law. The employer argues that the MOA constitutes a good faith effort on the part of the parties to address the issues otherwise raised by the grievance, and it is final and determinative.

7The union responds to the preliminary objections by emphasizing that the dispute at this point is not a reclassification grievance, but is with respect to the poisoned work environment created by the employer’s misleading communication with respect to the reorganization, for which the union seeks damages.

Decision

8Both of the preliminary objections raised by the employer prevent this matter from proceeding to a hearing.

9The grievances are, on their face, objections to the reclassification and seek the remedy of reclassification to the prior classifications held by the grievors. Section 51 of the Act is clear that no such grievances are permitted, in that the Board has no jurisdiction to provide a remedy. The Board has no jurisdiction to address the remedies sought in the grievances as they were drafted.

10Even if this were not the case, the parties to the collective agreement met to address the issues arising from the reorganization. A Memorandum of Agreement (MOA) was signed by the parties that provided for red-circling, among other things. The MOA renders the entire process one that has been jointly discussed and agreed.

11The union appears to have acknowledged the reality of s.51 of the Act, and has narrowed its remedial claim to address the problems encountered by employees as a result of the poor communication provided. The impugned documents were both subject to misinterpretation, and it can be assumed that any confusion caused by poor communication would not have made the situation any less difficult for employees. The nature of the communication cannot be defended. Whoever was responsible for drafting the communication was either uninformed or did not bring appropriate care to the drafting of the documents in question. It is easy to see why employees might have been misled by the written explanation provided. However, it is an unfortunate reality that the dismay experienced by the grievors would have been great in any event. While decisions of this nature cause much consternation in the workplace, such negativity is not in the nature of a poisoned work environment, as typically arises in cases of severe discrimination or harassment.

12Moreover, it is significant that the employer and the union both signed the MOA, after engaging in discussions regarding the salary rates and other issues related to the “transition of affected employees” arising from the reorganization. Given the wording of the MOA, it is apparent that the parties addressed the process in an all-encompassing manner. In spite of what happened next, the parties to the collective agreement had reached agreement with respect to the impact of the reclassification on the grievors, including the red-circling of wages.

13Given these facts, the misleading communication that issued after the signing of the joint agreement must be taken to be, to a significant extent, the joint responsibility of the parties. The union was fully informed of what was going to happen to the grievors as part of the reorganization. There is no evidence of that the union approved the employer’s communications or made any communication on its own. However, whether the union deferred to the employer, or whether union officials simply did not notice the misleading nature of the communication, the appropriate time to challenge the communication was at the time it was issued. It is not appropriate to put the employer in the position of defending the fallout from a joint process as if it now shouldered sole responsibility.

14It is easy to have sympathy for the grievors. It is difficult to be told that one’s jobs is to be valued at a lower rate of pay, and this is particularly difficult where, given the impact of s.51 of CECBA, there is no meaningful legal option to challenge and test the basis for the decision through the grievance arbitration process. However, after reviewing the facts, the submissions of the parties, the collective agreement and the Act, it is my conclusion that the grievances should be dismissed.