GSB#2012-0651

UNION#2012-0999-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

Union

• and -

The Crown in Right of Ontario (Ministry of Training, Colleges and Universities)

Employer

BEFORE

Joseph D. Carrier

Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Peter Dailleboust Ministry of Government Services Legal Services Branch Counsel

HEARING

May 29, 2013.

Decision

1The grievance before me alleges that the Employer, the Ministry of Training, Colleges and Universities, exercised its Management Rights in an unreasonable manner when it unilaterally adjusted the official range of rates available to members of OPSEU who occupied the Adjustment Advisory position. In effect, the original group of 13, now 10, employees within the classification have been downgraded to a lower paying classification. The changes were officially effective as at December 12, 2011 after which time those affected employees were considered by the Employer to be within the lower rated classification but red circled with respect to their pay rates in accordance with Article 7 of the Collective Agreement between the parties.

2Before me, Mr. Hannigan, counsel for OPSEU did not take issue with the manner in which Article 7 was applied to this group of employees. Rather, he identified the Union’s complaint as relating to the original changes conceived by the Employer and which when implemented, while marginally altering their duties, significantly impacted upon their future earnings.

3It was the Employer’s position presented by Mr. Peter Dailleboust that what occurred was a re-organization of duties and functions within that group and others. In the result, the duties thereafter assigned to this group more appropriately fit within the lower classification. They were therefore considered as at December 2012 to have been reclassified downwards from the Executive Officer 2 (EO2) classification to the Community Development Officer 3 (CDO3) position. In the circumstances, it is the Employer’s position that the Union’s complaint or grievance, regardless of how it is dressed or characterized by Mr. Hannigan, is a classification grievance. In the circumstances, Mr. Dailleboust by way of preliminary motion took the position that the grievance should be dismissed on both or either of the following two grounds.

1. The position adopted by the Union before me was an extension or expansion of the grievance as originally framed.

2. Since the substance of the grievance, regardless of how it is dressed, is essentially a grievance alleging improper classification, this Grievance Settlement Board is without jurisdiction to deal with the issue or provide a remedy.

4Before addressing this matter at the Grievance Settlement Board, the parties had agreed that it be processed pursuant to Article 22.16 of the Collective Agreement between them. Provisions within that Article describe an expedited mediation/arbitration procedure. Before me, the parties agreed that this matter should proceed pursuant to those provisions but that an extension of the five day time frame for issuance of the Award was warranted here in view of the extensive submissions and the need for clarity of reasons in the ultimate ruling.

The Discussion and Decision

5With the foregoing in mind, I have considered the capable and comprehensive submissions of counsel and concluded that the Employer’s position must prevail for the following reasons:

i. Paragraph 14 of Appendix 34 to the parties’ Collective Agreement as well as Sections 51 and 52 of CECBA are relevant to this Board’s jurisdiction to deal with the issue raised by the Union.

ii. Sections 51 and 52 of the Crown Employees Collective Bargaining Act (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.

iii. Paragraph 14 of the parties Letter of Understanding appearing as Appendix 34 to the Collective Agreement reads as follows:

The parties agree to a moratorium on any new classification grievances or complaints during the term of the collective agreement.”

iv. Mr. Hannigan for the Union attempted to characterize the grievance as something other than a complaint concerning the classification into which the Grievors were placed. In so doing he argued that I should consider the grievance to have arisen at the time the re-organization was conceived. That plan, although not challenged as having been made in bad faith, was an unreasonable exercise of management rights. Although it would not immediately impact on the wage rates of this group of employees, they would in the future be deprived of stepped wage increases and negotiated increases commensurate with those they had enjoyed in the past. Some of this group are relatively senior employees and the lower pay range would impact not only upon their future earnings but their pensionable earnings as well.

v. While I am sympathetic to those employees who, having enjoyed for some years that higher pay range which pertained to their pre-reorganization classification, Mr. Hannigan’s efforts to characterize the grievance as something other than a classification grievance beyond the impact of the provisions of CECBA cannot prevail. It is, indeed, a complaint that this group will in the future be classified and paid within the lower range. In essence, the challenge is that the duties they continue to perform since the re-organization more properly continue to fall within their original class rather than the class to which they were downgraded. Properly characterized, the grievance is, therefore, a classification grievance.

vi. On the other hand, if one considers the propriety of the Employer’s original plan and the implementation of the re-organization to be the substance of the Union’s challenge, that proposition could not succeed. There is no question, nor did Mr. Hannigan argue or contend that the Employer had no right to reorganize the work force and/or the duties performed by this group of employees. Indeed, the law is settled that such re-organizations are legitimately within the powers of management so long as it acts in good faith. Mr. Hannigan conceded that there was no bad faith in the Employer’s implementation of the re-organization here. Accordingly, there could be no violation of the Collective Agreement in the plan or implementation of the re-organization.

vii. In the circumstances, as indicated earlier, the true nature of the grievance is the resulting reclassification of this group of employees.

viii. This brings me back to a consideration of the CECBA provisions, in particular, section 51(2) which deprives this Grievance Settlement Board of the power to “require a change to be made in the classification of an employee”. Since I have concluded earlier that the true nature of this grievance is a complaint by the Union that this group of employees has, through the re-organization, been improperly reclassified to a lower level, I am without jurisdiction to review the propriety of their current classification.

xi. Indeed, even if the parties to this Collective Agreement had specifically attempted to grant this Board the power to review or change the classification of this group of employees, Section 52 would invalidate that provision. Clearly, the legislature has anticipated potential interference and chosen to thwart that possibility before it occurred.

x. Rather than challenging that legislation, the parties appear to have concluded that at least for the time being as reflected in their Letter of Agreement, that grievances concerning new classifications would not be pursued. While I was referred to that provision by Employer counsel, it is unnecessary for me to interpret or rely on that provision for the purposes of this award and I specifically decline any further comment on it except to note that it is consistent with the hands- off approach suggested within the CECBA provisions.

xi. The factual scenario in the matter before me is similar to that which was before Arbitrator Abramsky in OPSEU (Forman et al.) and MOE, GSB Nos. 2002-1806, 2002-1789, 2002-1985, 2002-1986. 2002-1989, 2002-1991, 2002-92 (Abramsky). The issues in principle were almost identical to those presently before me. Although the grievance before her had been framed as one concerning pay in which the Grievors were seeking monetary relief, she reasoned that the true nature of the matter was a challenge to the “classification allotted to them by the employer for pay purposes”. She concluded and I concur that the provisions of CECBA deprived her of jurisdiction to interfere or review their classification. Additionally, she noted that the appropriate remedy lay within other provisions of the collective agreement, in particular, a referral for consideration to the parties Joint System Sub-Committee (JSSC) provided for elsewhere in the Collective Agreement.

xii. Ms. Abramsky provided a synopsis of her findings at page 16 of her Award as follows:

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 RC2’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.

6In all the circumstances, I conclude, as did Ms. Abramsky in the Forman case, that the grievance here, at its core, raises “classification issues over which this Board does not have jurisdiction”. Accordingly, the Employer’s motion succeeds and the grievance is dismissed.