GSB# 2024-01543; 2024-01820; 2024-01821; 2024-02086

UNION# 2024-0652-0001; 2024-0649-0013; 2024-0649-0014; 2024-04324-0013

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lafreniere et al)

Union

• and -

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

Employer

BEFORE: Sara Slinn, Arbitrator

FOR THE UNION: Ali Saghari, Collins & Metcalfe LLP, Counsel

FOR THE EMPLOYER: Paul Meier, Treasury Board Secretariat, Legal Services Branch, Senior Counsel

SUBMISSIONS: By written submissions concluding June 26, 2025

Decision

INTRODUCTION

1This matter involves grievances filed by 28 grievors holding Integrated Resource Management Technical Specialist (“IRM”) positions. The grievances contest the Employer’s creation of certain temporary assignment Resource Management Coordinator (“RMC”) positions, which, the Union says do the same work as IRMs but have a higher classification and are paid a higher wage rate.

2This decision addresses a series of preliminary objections raised by the Employer. The Employer seeks dismissal of the grievances on the basis that: the grievances are, in substance, classification grievances and, therefore, the Board is without jurisdiction to hear them; the Union has not made out a prima facie case; the grievances lack the necessary foundation in the collective agreement for the grievors’ claims; and, that the Union is seeking to impermissibly expand the scope of the grievance.

3Having carefully considered the parties’ submissions and the case law, and for the reasons below, the grievances are dismissed.

BACKGROUND

4There is little disagreement between the parties about the background facts, as set out in their submissions. Where disagreement exists, I have noted this below.

5In late 2022, the Employer established a temporary team in the Central Land Unit in the Ministry of Natural Resources, Divisional Support Branch, Lands and Business Services Section to address service delays (“backlogs”). The composition of this “CLU Backlog Team” has changed over the course of its existence, and these changes are relevant to the grievances.

6When the CLU Backlog Team was first established, it included four IRM positions in the RTS 2 classification, in addition to other positions not relevant to this dispute. These temporary IRM positions were assigned, following a competition, to four individuals (the “Temporary IRM Backlog” positions), paid at the RTS 2 rate.

7Like the Temporary IRM Backlog positions, the grievors hold IRM positions and are paid at the RTS 2 rate. However, the grievors hold regular, not temporary positions outside of the CLU Backlog Team.

8In around December 2023, the Employer decided to eliminate the four Temporary IRM Backlog positions on the CLU Backlog Team and to replace them with four RMC positions in the, higher, RM 3 classification. The RMC positions on the CLU Backlog Team are also temporary positions (“Temporary RMC Backlog” positions).

9The Employer says that it established the Temporary RMC Backlog positions because in its view, after six months of work by the CLU Backlog Team, the backlog work had become more complex, and this would allow it to continue making progress on the remaining backlog files. In contrast, the Union says the Employer had no justification for creating these positions.

10The Temporary RMC Backlog job ad was posted in April 2024. The parties have different views about the nature of the Temporary RMC Backlog position work. The Employer says that the job specification said that the RMCs would take a lead role in coordinating the backlog project; the Union says the duties set out in the job ad are the same as those set out for the Temporary IRM Backlog positions in the Employer’s November 2022 presentation about creation of the CLU Backlog Team.

11The Employer says that, pending completion of the competition for the Temporary RMC Backlog positions, it temporarily assigned the four individuals in the Temporary IRM Backlog positions to these temporary RMC positions.

12Upon conclusion of the competition, four individuals were hired into Temporary RMC Backlog positions on the CLU Backlog Team. The Employer says, and the Union did not dispute, that the four individuals in the Temporary IRM Backlog positions applied to this competition, that one was awarded a Temporary RMC Backlog Assignment position, and that one of the 28 grievors in this matter applied to the Temporary RMC Backlog position competition.

13The Employer says, and the Union did not dispute, that as of the end of March 2025, the CLU Backlog Team is being wound down, and that the temporary assignments of two CLU team members have been extended until December 31, 2025, when the CLU work is expected to be concluded.

14Twenty-eight IRMs filed grievances between June and September 2024 challenging these Temporary RMC Backlog positions.

The Grievance Forms

15The parties provided five of the grievance forms involved in this matter with their submissions (grievance forms of Bierman, Lepage, Barrette, Lafreniere, Morin, referred to here as the “Grievance Forms”). I understand these to be representative examples of the grievances in this matter.

16The Grievance Forms each contain the same statement of grievance, as follows:

I am grieving the creation of four ‘special project’ positions in the new Central Lands Unit. These positions were created and offered to people from the bottom of a previous IRM pool competition, to focus exclusively on a backlog of district IRM work. These positions have since been quietly converted from IRM (RTS2-Technical BU) to RMC (RM4 – Admin BU) through a competition. This work was, and still is, identical to the work performed at the district level. In fact, district lands staff routinely deal with a higher volume and complexity of files than these new positions.

(with the minor exception that two of the grievance forms, in an apparent typographical error, replace “RMC” with “RMV”).

17The “settlement desired” varies among the Grievance Forms. All five request to be made whole and “[f]or District IRM’s (and specialists) to receive an appropriate, modern job description, just like the new lands positions, that would result in an appropriate classification and compensation within the OPS.” Two Grievance Forms (Lepage and Barrette) also seek “[a]ny other compensation/order granted by the Arbitrator,” while another two (Lafreniere and Morin), instead, make the following additional requests: to “[b]e placed in an equivalent or high classification,” “Receive retro pay from the date when these new positions were created,” and “[a]ny other remedies deemed appropriate by arbitrator.”

18After responding to the Employer’s initial submission, the Union brought to the attention of the Board and of Employer Counsel, unsolicited, the Employer’s grievance denial letter, dated October 2, 2024, in relation to the Bierman et al. grievance (the “Denial Letter”). The Employer did not object to me considering the Denial Letter.

RELEVANT COLLECTIVE AGREEMENT PROVISIONS AND LEGISLATION

19Article 2 of the Collective Agreement provides:

ARTICLE 2 – MANAGEMENT RIGHTS

2.1 For the purpose of this Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Collective Agreement to which the parties are subject.

20Article 22.12 of the Collective Agreement provides:

22.12 CLASSIFICATION

22.12.1 An employee who alleges that their position is improperly classified may discuss their claim with their immediate supervisor at any time, provided that such discussions shall not be taken into account in the application of the time limits set out in Article 22. An employee, however, shall have the right to file a grievance in accordance with the grievance procedure, specifying in their grievance what classification they claim.

22.12.2 A classification grievance as provided in Article 22.12.1 which has not been resolved by the end of the Formal Resolution Stage of this grievance procedure may be referred to the Joint System Subcommittee (JSSC) provided in Appendix 7 (Classification System Subcommittees) of this Agreement, for final resolution. Any grievances being referred to the JSSC, must be forwarded to the Employer representatives of the Committee, no later than one (1) month after the Employer’s response at the Formal Resolution Stage. The JSSC may decide on any grievance referred to it. Where the parties at the JSSC concur, their decision shall be binding on the parties and any affected employee. Where the parties at the JSSC do not concur, the matter shall remain unresolved unless and until concurrence is reached.

21The Collective Agreement Appendix 34, Classification System Letter of Understanding provides, in its relevant parts:

Both parties recognize that the current classification system is outdated and requires revision. Previous attempts to design a new system have been unsuccessful, and it is recognized that any such undertaking, because of its size and complexity, must be addressed with a large measure of care, deliberation and commitment.

With these principles in mind, the parties agree to the following:

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

22Sections 51 and 52 of the Crown Employees Collective Bargaining Act, 1993, SO 1993, c 38 (“CECBA”) provide:

Classification grievances, restriction

51 (1) 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) An order of the Grievance Settlement Board shall not require a change to be made in the classification of an employee.

52 (1) A provision in an agreement entered into that provides for the determination by an arbitrator, a 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.

(2) Subsection (1) applies to agreements entered into before or after the date on which the Labour Relations and Employment Statute Law Amendment Act, 1995 receives Royal Assent.

SUMMARY OF THE PARTIES’ ARGUMENTS

Employer’s Argument

23The Employer’s initial submission addresses the first preliminary issue: whether the grievances are, in substance, classification grievances and, therefore, must be dismissed because they fall outside the Board’s jurisdiction.

24The Employer’s position is that the substance of the grievances is an allegation of improper classification. As a result, the Employer says, the Board is precluded from dealing with these grievances by operation of Article 22.12, and paragraph 15 of Appendix 34 of the Collective Agreement, and sections 51 and 52 of the CECBA. As a result, the Employer says, the grievances must be dismissed for lack of jurisdiction.

25Pointing to the Grievance Forms, the Employer says that the remedies sought by the grievors also show that these are, in substance, classification grievances, and suggests that these requests are based on the grievors’ belief that they do the same work as the Temporary RMC Backlog position work. The Employer emphasizes that section 51 of the CECBA prohibits the Board from ordering classification remedies.

26The Employer relies on the following case in support of its submissions: Ontario Public Service Employees Union (Fitzpatrick et al) v Ontario (Solicitor General), 2024 CanLII 29942 (ON GSB) (“Fitzpatrick”) and says the same reasoning and result should follow in the present case.

Union’s Response

27In its Response, the Union acknowledges that the Board lacks jurisdiction over classification matters, but contends that this is not a classification case. Instead, the Union says, it is a review of the Employer’s management rights and discretion in exercising that right and that the grievances raise the issue of whether the Employer improperly exercised its management rights or discretion in creating the temporary CRM assignments.

28The Union says the “crux of this case is about management’s bad faith, arbitrary and discriminatory exercise of its management right and discretion to grant temporary assignments,” and that the Union is asking the Board to “determine whether the employer improperly exercised its management rights or discretion in creating the temporary [RMC] assignments.” The Union specifies that “the Employer had no justification for the creation of these [RMC] roles as the work was not differentiated from what was already being done by the IRMs” and that “… the issue is the creation of temporary positions for roles which already existed without any reasonable justification leading to unfair and prejudicial labour practices.” The Union contends that management rights “cannot be exercised in a discriminatory or arbitrary manner if it leads to unfair labour practices.”

29Acknowledging that section 51 of the CECBA limits the remedies that the Board may order, the Union argues that even if the wording of the grievances can be understood to request reclassification, the grievors seek remedies other than reclassification, which are within the Board’s jurisdiction to order. The Union also argues that section 51 does not otherwise prevent the Board from enforcing the Collective Agreement.

30The Union says that classification grievances are those where the classification of the grievors must be determined at some point in time, but says that here the Board need not make this determination. The Union says that the grievances require the Board to review job descriptions and duties to determine the overlap between the IRM role and the temporary RMC role. However, the Union argues, this does not mean that these are classification grievances.

31In support of its arguments the Union cites the following cases: Ontario Public Service Employees Union (Dobroff) v. Ontario (Ministry of the Environment), 2005 CanLII 55183 (ON GSB); Ontario Public Service Employees Union v. Ontario (Management Board Secretariat), 2001 CanLII 25793 (ON GSB).

Employer’s Reply

32In its Reply the Employer reaffirms its position that the grievances are classification grievances, and responds to what it calls the Union’s reframing of the grievances in its Response as a management rights issue. The Employer also raises the three additional preliminary issues identified at the outset of this decision.

33The Employer reiterates its position that the grievances are classification grievances in substance, and outside the Board’s jurisdiction to deal with. In response to the Union’s claim that these are management rights grievances the Employer asserts that, on a careful review of the facts, the grievances are fundamentally improper classification grievances and that even if reframed as management rights grievances, as the Union has done in its Response, the core issue remains the grievors’ dissatisfaction with the creation of the temporary RMC positions and with their own classifications.

34The Employer contends that the Union’s Response repeats the allegations set out in the Grievance Forms that the work assigned to the temporary RMC positions “was not differentiated from what was already being done by the IRMs.” The Employer says the Union continues to assert that the grievors seek, among other things, “reimbursement of wages.” The Employer interprets this remedial request to arise from the grievors’ allegation that the work assigned to the Temporary RMC Backup positions was duplicative of the IRMs’ work and therefore this is owed to the grievors. The Employer says that it is undisputed that the Employer established the CLU and its temporary Backlog Team for legitimate business and operational reasons, and that the Employer then decided to reorganize the work the CLU Backlog Team to meet its evolving business needs. The Employer urges the Board to apply the same reasoning and come to the same conclusion as the Board did in Fitzpatrick to find that the grievances in this case are, in substance, classification grievances.

35The first preliminary issue the Employer raises in this Reply requests that the grievances be dismissed on the basis that the Union has not made out a prima facie case. The Employer contends that these grievances are based on bald and subjective conclusions unsupported by facts, and, as such, the Union has not made out a prima facie case. In this regard, the Employer points to what it asserts are the “bald and subjective ‘conclusions’”, lacking explanation and unsupported by assertions of fact, that the Employer had no reasonable justification and acted in bad faith in exercising its managerial authority to pursue its business interests in posting the four Temporary RMC Backlog positions to facilitate clearing the backlog.

36In contrast, the Employer says, it has offered a business rationale for its decision to post Temporary RMC Backup positions so that the CLU Backlog Team could complete its work. The Employer says that neither the grievors nor the Board are entitled to determine the sufficiency of an employer’s business rationale.

The second aspect of the Employer’s argument asserts that the Board has no free-standing jurisdiction to review the exercise of management rights for reasonableness. The Employer says that the Board has recognized that a restriction of the exercise of management rights requires the “negation or undue limitation” of a specific collective agreement provision, and that the Collective Agreement Article 2.1 management rights clause similarly provides that management rights are “subject only to the provisions of this Collective Agreement to which the parties are subject.”

37The Employer says that the Union has not met this requirement: it has not identified how any provision of the Collective Agreement has been negated or unduly limited. As for the statement in the Denial Letter that grievor Bierman had provided additional information that Articles, 2, 3, 6, 7, 8, and 18 of the Collective Agreement were also at issue, the Employer argues that the Union’s Response contains no assertions of fact relating to alleged contravention of any of these provisions.

38The second preliminary issue the Employer raises is that the grievances lack the necessary foundation in the collective agreement, and therefore should be dismissed. The Employer says the grievors do not claim that their own collective agreement rights are directly affected, nor do they claim that a specific provision of the Collective Agreement has been breached by the Employer’s actions. Instead, the grievances centre on the claim that the grievors do the same work as those in the Temporary RMC Backlog positions.

39The Employer argues that the Board’s previous case law demonstrates that grievors may not grieve an employer’s actions regarding other employees where the grievors themselves are not materially affected by the employer’s actions: this does not give rise to individual claims under the Collective Agreement. Therefore, the Employer says, these grievances are simply “me too” claims which the Board has repeatedly said it has no jurisdiction to deal with, and so the grievances in this matter should be dismissed.

40Finally, the Employer contends that the grievances ought to be dismissed on the basis that the Union’s framing of the grievances in its Response submissions, as a review of management rights, constitutes an impermissible expansion of the scope of the grievances. The Employer says that the Union’s Response “raises new issues, calls for new remedies and has clearly required new legal submissions.” The Employer says that the Union is attempting to expand the scope of the grievances after becoming aware of the Employer's objection to the grievances on the basis that the grievances were, in substance, classification grievances, and therefore the Board is without jurisdiction to deal with them.

41The Employer relies on the following decisions in support of its Reply submission: Fitzpatrick; OPSEU (Boyer) v. Ontario (MOE) GSB# 2000-0742 (Abramsky); Fanshawe College v. O.P.S.E.U., 2002 CanLII 79073 (ON LA); OPSEU (Anthony et al.) and Ministry of Labour (2004), GSB No. 1999-1977 et al. (Abramsky); Ontario Public Service Employees Union (Lesieur et al.) and The Crown in Right of Ontario (Ministry of the Environment), 2005 CanLII 54831 (ON GSB); Ontario Public Service Employees Union (May et al.) v. Ontario (Community Safety and Correctional Services), 2007 CanLII 14606 (ON GSB); Ontario Public Service Employees Union (Dobroff) v. Ontario (Environment), 2008 CanLII 19779 (ON GSB); NGF Canada Ltd. v. Workers United Ontario Council, (2010),194 L.A.C. (4th) 264 (Surdykowski); Ontario Public Service Employees Union (Bharti) v Ontario (Natural Resources and Forestry), 2015 CanLII 19330 (ON GSB); UNIFOR Local 672 v SGS Canada Inc., 2017 CanLII 60979 (ON LA); Ontario Public Service Employees Union (Laderoute) v Ontario (Community Safety and Correctional Services), 2018 CanLII 55847 (ON GSB).

42Although having had the opportunity to do so, the Union made no submissions on the arguments or preliminary issues raised by the Employer in its Reply.

ANALYSIS

Is the Union Expanding the Scope of the Grievances?

43I turn first to the Employer’s motion to dismiss the grievances on the basis that the Union is seeking to improperly expand the scope of the grievance. For the reasons that follow, I conclude that the grievances as advanced by the Union in its Response are an impermissible expansion of scope of the grievances.

44In Fanshawe College v. O.P.S.E.U., 2002 CanLII 79073 (ON LA) (“Fanshawe”) at para 10, Chair Burkett set out the following general principles:

…arbitrators are to deal with the issue raised on a broad reading of the grievance. However, … "... it is not open to a party to unilaterally expand a grievance to encompass a matter not grieved." Fairness, as well as the efficient administration of the grievance and arbitration process, dictates that this be so. The aggrieved party is entitled to rely on the grievance as filed, albeit read in its broadest terms, and to govern itself accordingly with respect to settlement discussion, referral to arbitration and preparation for arbitration…

45In that decision Chair Burkett also set out the following approach and test to be applied by an arbitrator to determine whether a party is improperly expanding the scope of a grievance:

…an arbitrator must compare the grievance as written, including the remedy sought, to the issue as raised at arbitration, including the remedy sought. …The acid test is whether an issue not encompassed within the grievance that requires the calling of evidence and the making of legal submissions has been raised (Fanshawe at para 11)

46Therefore, I must compare the grievances as written, including the remedies sought to the those raised in the Union’s Response submission. In this regard I examine the Grievance Forms and, for the Bierman et al. grievance, the “clarifications” as set out in the Denial Letter, compared to those set out in the Union’s Response.

47I turn first to the Grievance Forms to examine the grievances as written, including the remedies sought. The Grievance Forms each contain the same statement of grievance, which is set out in the Background section, above, and which I set out again here for convenience:

I am grieving the creation of four ‘special project’ positions in the new Central Lands Unit. These positions were created and offered to people from the bottom of a previous IRM pool competition, to focus exclusively on a backlog of district IRM work. These positions have since been quietly converted from IRM (RTS2-Technical BU) to RMC (RM4 – Admin BU) through a competition. This work was, and still is, identical to the work performed at the district level. In fact, district lands staff routinely deal with a higher volume and complexity of files than these new positions.

48There is some variation among the Grievance Forms in the remedies sought. All five request:

• To be made whole.
• For District IRM’s (and specialists) to receive an appropriate, modern job description, just like the new lands positions, that would result in an appropriate classification and compensation within the OPS.

Two also seek “[a]ny other compensation/order granted by the Arbitrator.” Another two, make the following additional requests, instead:

• Be placed in an equivalent or high classification.
• Receive retro pay from the date when these new positions were created.
• Any other remedies deemed appropriate by arbitrator.

49As noted above; after submitting its Response to the Employer’s initial submission in this matter, the Union provided the Board and Employer Counsel with the October 2, 2024 Denial Letter in relation to the Bierman et al. grievance. The Denial Letter provides:

RE: Your Group Grievance Dated June 28, 2024 (Bierman et al.)

In accordance with Article 22.3 of the OPSEU Collective Agreement, a Formal Resolution Stage (FRS) meeting for your group grievance (Bierman et al.) was held on September 18, 2024. In addition to you and I, in attendance at the meeting, the following also attended:

• Cliff Vankoughnett (Grievor)
• Shawn Fortin (Grievor)
• Rhonda Ferguson, OPSEU Staff Representative
• Scott Smithers, OPSEU Representative (Local 434)
• Adam Worth, District Manager (Kemptville-Kingston District)
• Sharyn Haniff, Human Resources Advisor

The grievance states:

[the Denial Letter reproduced the statement of grievance and summarized the desired settlement requested in the grievance form]

Following the FRS meeting … you provided additional information, clarifying that you were grieving articles 2, 3, 6, 7, 8 and 18 of the OPSEU Collective Agreement. You also clarified that you were seeking the following settlement:

1. We request that District Integrated Resource Management Technical Specialist be provided with updated and standardized job descriptions in line with those recently developed in the Central Lands Unit. This should include consistent HR language and the application of the same job evaluation methodology utilized by the Jobs Evaluation Initiatives Branch (JEIB), specifically the Point Factor Rating as opposed to the Grade Description Methodology. Implementing this will support the modernization and strategic vision of the Regional Operations Division by ensuring that all personnel performing similar roles are placed in the appropriate category and compensated fairly based on their skills, knowledge, and responsibilities. Furthermore, this will enhance clarity regarding individual responsibilities and delineate the scope of work associated with the Central Lands Unit.

2. To be made whole:

3. To receive retroactive pay effective from the date of creation of these new positions:

4. Any additional remedies deemed appropriate by an arbitrator.

Upon review of all the information provided and the terms and conditions as set out in the Collective Agreement, I find no violation of the Collective Agreement. Accordingly, your grievance is denied.

The Ministry is taking the position that this is a classification grievance, which the Grievance Settlement Board has no jurisdiction over. Furthermore, as per Appendix 34 paragraph 15 of the Collective Agreement, there is a moratorium on any new classification grievances or complaints during the term of the Collective Agreement. The Employer reserves the right to raise and rely on any other preliminary objections.

50Turning to the grievances as advanced at arbitration, the Union’s Response describes the grievances as follows:

• The crux of this case is about management’s bad faith, arbitrary and discriminatory exercise of its management right and discretion to grant temporary assignments.
• Management rights cannot be exercised in a discriminatory or arbitrary manner if it leads to unfair labour practices.
• [T]he issue is the creation of temporary positions for roles which already existed without any reasonable justification leading to unfair and prejudicial labour practices.

51As for remedies sought, the Union says in its Response that the grievors are not seeking reclassification, and that the Board “is not prohibited from making determinations on back pay for the grievors, damages from the Employer for misuse of management rights or declarations on the Employer’s conduct,” suggesting that these are among the remedies being sought.

52Therefore, at arbitration the grievors appear to be seeking backpay, damages for “misuse of management rights,” or declarations as remedies.

53Having reviewed the grievances as raised and then as advanced at arbitration I must compare them to determine whether “an issue not encompassed within the grievance that requires the calling of evidence and the making of legal submissions has been raised.”

54The Grievance Forms contain no express or implied reference to misuse of management rights or to any specific Collective Agreement articles in the statements of grievances.

55The Denial Letter, relevant to the Bierman et al. grievance, records the “clarifying” information that several provisions of the Collective Agreement were at issue, including Article 2, Management Rights. However, it simply lists the provision numbers, with no assertions of fact that could be understood to claim arbitrary, discriminatory, or bad faith Employer conduct.

56In contrast, at arbitration the Union’s Response expressly asserts the allegations of “bad faith, arbitrary and discriminatory exercise of … management rights and discretion” and that the Employer’s actions led to “unfair and prejudicial labour practices.” The Union is emphatic in its response that this is the “crux” of the grievances.

57Comparing the remedial requests in the Grievance Forms and, for the Bierman et al grievance, the Denial Letter with those in the Union’s Response reveals that they are largely consistent. Common elements include “make whole” remedies and variations retroactive pay, back pay, and wage reimbursement. The Grievance Forms and Denial Letter also refer to other remedies an arbitrator may grant. None of the desired settlement requests clearly relate to remedies for arbitrary, discriminatory, or bad faith managerial conduct, or unfair and prejudicial labour practices.

58The new remedial requests introduced in the Union’s Response seek “damages from the Employer for misuse of management rights or declarations on the employer’s conduct.” These remedies are consistent with the allegations of improper managerial conduct introduced at arbitration.

59Returning to the “acid test” that must be applied, I must decide “whether an issue not encompassed within the grievance that requires the calling of evidence and the making of legal submissions has been raised” (Fanshawe at para 11). Applying a broad reading of the grievances as filed and reflected in the Grievance Forms and, for the Bierman et al grievance, the Denial Letter, and comparing this to the grievances as framed at arbitration I find that this test is satisfied.

60Therefore, I conclude that the Union is seeking to improperly expand the grievances at the arbitration stage to include new issues – specifically allegations of bad faith, arbitrary and discriminatory exercise of the Employer’s management rights and discretion leading to “unfair and prejudicial labour practices” and associated remedial requests including “damages for misuse of management rights,” which would require calling of evidence and making of legal submissions.

61Because of this finding, the scope of the grievances that are before me in this matter are as set out in the Grievance Forms and, for the Bierman et al. grievance, the Denial Letter and does not include the issues newly raised by the Union in its Response submission.

Are These, in Substance, Classification Grievances?

62Having determined that the scope of the grievances before me are as set out in the Grievance Forms and Denial Letter, I now turn to the consider whether the grievances are, in substance, classification grievances. I first review the statutory and Collective Agreement limits on the Board’s jurisdiction over classification grievances, outline the principles guiding this determination, then apply these principles to the grievances before me. Upon a careful examination of the specific facts here I conclude for the reasons below that the grievances before me are, in substance, classification grievances.

63The Union acknowledges in its submissions that the Board lacks authority over classification matters. Therefore, what is in dispute and must be decided here is whether these grievances, in their substance, constitute classification grievances. If so, then there is no dispute that they are outside the Board’s jurisdiction to hear.

64The necessary approach to determining whether a grievance is a classification grievance is explained by Arbitrator Dissanayake as follows:

This brings us full circle to the basic proposition that the critical issue is whether or not the substance of a particular grievance is an allegation of improper classification, and that in deciding that issue the specific facts of each case are determinative (Ontario Public Service Employees Union (Dobroff) v. Ontario (Ministry of the Environment), 2005 CanLII 55183 (ON GSB) at p 8 (“Dobroff”).

65Arbitrator Abramsky has also cautioned that “[e]ach case must be evaluated on its specific facts and bona fide temporary assignment grievances should not lightly be dismissed as disguised classification grievances” (OPSEU (Boyer) v. Ontario (MOE) GSB# 2000-0742 (Abramsky) as cited in Fitzpatrick at para 31). Finally, Arbitrator Gorsky has said that classification grievances are “grievances 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” (Re Aitken, 678/87 (Gorsky) as cited in Dobroff at p 11).

66This approach, including the emphasis on careful analysis of the specific facts of each case, has been adopted by other arbitrators and I also adopt and apply this approach here.

Classification Grievances and the Board’s Jurisdiction

67Arbitrator Johnston provides a helpful explanation of the combined effects of sections 51 and 52 of the CECBA and Article 22.12 and Appendix 34 of the Collective agreement in the Fitzpatrick decision at paras 11 and 12, which I reproduce here:

11. Counsel for the Employer pointed out that CECBA, which governs the GSB, was amended in 1995 to include the current version of s.51. Subsection 1 explicitly prohibits the GSB from creating new classifications or from altering an existing classification. Subsection 2 clearly states that no order of the Board shall require a change to be made in the classification of an employee. Section 52 of CECBA reinforces the message that classification grievances are invalid, by expanding the prohibition on dealing with classification matters beyond the GSB to all boards of arbitration. Specifically, Section 52 voids any agreement that provides an arbitrator, board, or tribunal with the authority to tinker with the classification system, or to determine or change an employee’s classification.

12. OPSEU and the Crown have reflected this legislative reality in their collective agreement. Specifically, Article 22.12 sets up a separate process and forum, that being the Joint System Subcommittee (JSSC), to deal with classification issues. The Collective agreement also contains Appendix 34 entitled the Classification System, which sets out the JSSC process in greater detail, and which stipulates, at paragraph 15, that the Parties agree to a moratorium on classification grievances.

68Consistent with Arbitrator Johnston’s explanation set out above, Arbitrator Gray, in the Ontario Public Service Employees Union v. Ontario (Management Board Secretariat), 2001 CanLII 25793 (ON GSB) (“Management Board”) decision that the Union brings to my attention, provided the following, obiter, explanation of the effect of section 51 of the CECBA on the Board’s jurisdiction over classification grievances (at paras 40 and 42):

… Section 51 imposes limits on the remedies that the GSB may order if it finds that the employer has breached the provisions of the collective agreement. It does not otherwise preclude enforcement of collective agreement provisions concerning or involving classification matters.

…. Subject to section 51, and to the provisions of the collective agreement itself, the GSB does have jurisdiction to enforce provisions that the parties have made in their collective agreement prescribing the classification system to be used in determining compensation for bargaining unit employees.

69In that decision and in the above passages, Arbitrator Gray addresses the independent effect of section 51 of the CECBA. In contrast, Arbitrator Johnston explains, in the excerpt from the Fitzpatrick decision set out above, the combined effect of the CECBA sections 51 and 52 and Article 22.12 and Appendix 34, paragraph 15 of this Collective Agreement on the Board’s jurisdiction over classification grievances.

The Dobroff and Fitzpatrick Decisions

70Before examining the facts of the present case, I address two Board decisions addressed in argument by the parties: the Dobroff decision which the Union says is analogous to the present case, which the Employer disagrees with; and the Fitzpatrick decision which the Employer argues is similar to the present case and should be followed here, while the Union disagrees.

71In Dobroff the grievors held Air Quality Analyst (“AQA”) positions. Workers in the Water Quality Analyst (“WQA”) position, at the same classification and doing essentially the same work as AQAs, were temporarily assigned to a higher classification. The WQA group received higher acting pay under the collective agreement temporary assignment pay provision. The AQA group, including the grievors, did not receive this temporary assignment or the higher acting pay. This is what gave rise to the grievances. Arbitrator Dissanayake denied the employer’s motion to dismiss, concluding that the grievances were not, in substance, classification grievances.

72Although the situation giving rise to the grievances there bears some similarities to the present matter, there are several crucial distinguishing features of that case which lead me to conclude that it is not of assistance here.

73First, Arbitrator Dissanayake cautioned that “this conclusion is based on the assurances given by the union (which are noted in this decision) as to what allegations it will pursue and what remedy it will seek” and emphasized that the “union will therefore be held to the assurances made” (p 17). These assurances included that the union was not seeking determination of the appropriateness of the grievors’ classifications: the union had stated that the Board could accept for the purposes of the grievances that the grievors were properly classified. Further, regarding remedy, the union assured the employer and the Board that it would not seek an order that the grievors’ classification be changed (pp 12, 16-17). In contrast, no such assurances have been made in the present case.

74A second important distinction is that in addition to claiming bad faith, arbitrary and discriminatory exercise of management rights and discretion to grant temporary assignments, the union also alleged that these employer decisions were influenced by improper motivations: reprisal for union activity, including reprisal for engaging in grievance activity contrary to Article 3.2 of the Collective Agreement, and “personal issues.” The union provided specific factual assertions for these claims. However, in the present case no allegation of reprisal for union or grievance activity or anti-union animus has been made. Finally, it is also notable that in that case the parties had agreed for the purposes of that preliminary decision that the Board was to assume that the union would be able to prove its assertions. No such agreement has been made in the present case. Therefore, the Dobroff decision is distinguishable from the present case and not applicable here. The second case, the Fitzpatrick decision, involved grievors employed as Discharge Planners, with an RO classification. A Community Re-Integration Officer (“CRO”) position was created, at a higher, Probation Officer 2, classification. Some institutions received CROs; others did not. The grievors’ institution was one of the latter.

75These grievors claimed that they were assigned the work of the higher classification CROs. The Arbitrator found the union specifically relied on Article 8.1.1, providing for acting pay for temporary assignment to duties of a higher classification position (the “acting pay provision”).

76The union’s position was that the substance of the issue was whether the grievors had been assigned and performed the higher classification, CRO, duties. The employer argued that “the real issue in dispute in this case was the grievors’ unhappiness with the creation of the CRO position and desire to have the position eliminated as they alleged it was duplicative of the work of the Discharge Planner (Rehabilitation Officer 2)” (Fitzpatrick at para 22).

77As noted in that case, and as in the present case:

The grievances refer to duplication and refer to the fact that the grievors are performing the same or similar work. The grievances also refer to a wage and pay disparity and the grievors ask to be compensated at the higher rate (Fitzpatrick at para 27).

78Arbitrator Johnston concluded that these grievances were, in essence classification grievances and, therefore, dismissed the grievances.

79The Union, here, says Fitzpatrick is distinguishable because there the new classification was permanent, not temporary, and because there the duties overlapped, but in the present case the new, temporary positions have what the Union says is a demonstrated history of doing the same work within the same team, referring to the Temporary IRM Backlog positions.

80I disagree with the Union that this case is distinguishable on these facts. The fact that the contested position was permanent rather than temporary was not material to the Board’s decision in that case. Nor do I understand a difference between overlapping, and what is asserted to be complete duplication, of duties to have been relevant to that decision.

Comparison of Job Duties

81In analyzing the specific facts of cases, arbitrators have considered whether it is necessary to engage in an analysis of the duties performed by different employee groups. Arbitrators consider both the requirement for and the purpose of the comparison.

82Here, the Union does not dispute that the Board must engage this comparison. The Union says it “will require the GSB to review job descriptions and duties to determine the overlap between the IRM and [RMC] roles.” However, the Union points to Dobroff decision arguing that this comparison does not necessarily mean that these are classification grievances. Although I have distinguished Dobroff and concluded it is not of application here, for clarity, I address the Union’s argument about this case.

83In that decision, the Board undertook a comparison of the duties of the two groups of workers (the AQAs and WGLs). The Arbitrator described the purpose of the comparison as “done not for the purpose of determining the appropriateness of classifications” but, rather, to determine whether the two groups were ““equals” in the sense of performing the same or similar work” and that “If that is established to be so, the union’s argument that there was no legitimate operational or business explanation for the differential treatment will be buttressed. That would be the sole purpose of the comparison” (pp 12-13). That is, the Arbitrator identified the sole purpose of the comparison to determine if there was support for the allegations of improper purposes for the employer’s action.

84Importantly, this must be understood in the specific context of that case, in which the union claimed that the employer’s decision to provide a temporary assignment opportunity to one group, the WGLs, was improperly motivated by anti-union animus in contravention of Article 3.2 of the Collective Agreement. This underpins the Arbitrator’s conclusion that the purpose of the comparison related to the claim of anti-union animus rather than appropriateness of classifications. No such claims are before me in the present grievances.

85In contrast, in the Fitzpatrick decision Arbitrator Johnston examined the claims the grievors did and did not make about their duties, noting that they did not claim their duties had changed, observing that “[i]n fact, the opposite is true as all three grievances allege that the new CRO positions ‘duplicate the work of the Rehabilitation officers’” (para 34). This led Arbitrator Johnston to conclude, as follows, that a necessary comparison of the duties of two groups in different classifications indicated that the grievance was a classification issue:

This to me sounds like an assertion that the work the new CRO position was performing duplicates the work performed by the grievors. In order to determine this claim by the grievors, it would be necessary to engage in an analysis of the duties performed by the two classifications. Clearly assessing if there is an overlap or duplication of duties between two classifications, is a classification issue (Fitzpatrick at para 34).

86As in that case, the grievors here do not claim that their duties have changed. Also as in that case, the grievors here claim the work of the Temporary RMC Backlog positions duplicate the work of IRMs: the Grievance Forms state “[t]his work was, and still is, identical to the work performed at the district level.” Therefore, I also find that this means that it is necessary to engage in an analysis of the duties performed by the two groups: the Temporary RMC Backlog positions at the higher, RM 3 classification, and the IRMs at the lower, RTS 2, classification.

87The situation in Fitzpatrick is analogous to the present situation in this regard, and I come to the same conclusion: as acknowledged by the Union these grievances involve comparing the duties of groups in two classifications, and I find that in the circumstances of this case this indicates that these are classification grievances.

Remedial Requests and Classification

88Examination of the remedy requested has also been part of arbitrators’ analysis of the specific facts, and I also consider the remedies sought in the present case.

89Here, the grievances explicitly seek reclassification: all the Grievance Forms request that the “District IRM’s (and specialists) to receive an appropriate, modern job description, just like the new lands positions, that would result in an appropriate classification and compensation within the OPS” and two request to “[b]e placed in an equivalent or high classification.” The Denial Letter, relevant to the Bierman et al. grievance, records the request that “District Integrated Resource Management Technical Specialist be provided with updated and standardized job descriptions in line with those recently developed in the Central Lands Unit… [ensuring that all personnel performing similar roles are placed in the appropriate category and compensated fairly based on their skills, knowledge, and responsibilities.”

90I recognize that in its Response the Union asserts that the “grievors are not seeking reclassification.” However, I cannot accept that assertion, with respect to the grievances as they are before me, given the explicit remedial requests outlined above.

91Even if I could conclude that grievances did not request reclassification, the remedial request need not include reclassification for a matter to be found to be a classification grievance. This is demonstrated in Fitzpatrick. There the grievors requested a monetary remedy: to be paid the same amount as the higher classification position. Concluding that the grievances were classification grievances, Arbitrator Johnston focused on the rationale underlying the remedial requests:

…While it is true that the grievances ask for monetary compensation, it is not because they assert that they were temporarily performing the duties of the higher rated position, but because they assert that the duties of the higher rated position duplicate the duties they perform (Fitzpatrick at para 35).

92Here, the grievances also seek monetary remedies. Some Grievance Forms request “retro pay from the date when these new positions were created,” and, for the Bierman et al. grievance, the Denial Letter records requests for “retroactive pay effective from the date of creation of these new positions.”

93As in the Fitzpatrick decision, it is clear in the present case that the monetary remedial requests in the present case are based on the grievors’ assertion that the duties of the higher rated position duplicate the duties they perform and therefore are not inconsistent with the grievances being classification grievances.

94Finally, the Union argues that, even if the grievances are understood to seek reclassification, because they seek additional, non-classification remedies, the Board still has jurisdiction to enforce the Collective Agreement since section 51 of the CECBA only limits the remedies the Board may order. While that may be the separate effect of section 51, the combined effect of the CECBA sections 51 and 52 and Article 22.12 and Appendix 34, paragraph 15 of this Collective Agreement on the Board’s jurisdiction over classification grievances is broader, as explained above. I must consider the effect of all the CECBA and Collective Agreement limitations on Board jurisdiction.

Classification at a Point in Time

95Next, I turn to the question of whether this case requires a decision about the proper classification of the grievors at a point in time.

96The Employer says that the grievors are seeking changes to their classification and compensation, to be “just like the new lands positions” and that this constitutes determining reclassification of a grievor "at some point in time." The Union contends that no such determination is required in this case. Each of the Grievance Forms requests that “District IRM’s (and specialists) to receive an appropriate, modern job description, just like the new lands positions, that would result in an appropriate classification and compensation,” two Grievance Forms request to be “placed in an equivalent or high classification” and “retro pay from the date when these new positions were created.” The Denial Letter, relevant to the Bierman et al. grievance, states that those grievors, in addition to retroactive pay, request:

…that District Integrated Resource Management Technical Specialist be provided with updated and standardized job descriptions in line with those recently developed in the Central Lands Unit. … Implementing this will support the modernization and strategic vision of the Regional Operations Division by ensuring that all personnel performing similar roles are placed in the appropriate category and compensated fairly based on their skills, knowledge, and responsibilities. Furthermore, this will enhance clarity regarding individual responsibilities and delineate the scope of work associated with the Central Lands Unit.

97Examining the Grievance Forms and remedies requested there and as recorded in the Denial Letter, it is very clear that the grievances before me require a decision about the proper classification of the grievors.

98Therefore, on examination of the specific facts of this case, I conclude that the grievances before me are, in substance, classification grievances and, consequently, outside of the Board’s jurisdiction to hear.

CONCLUSION

99In conclusion, I find that the scope of the grievances that are before me in this matter are as set out in the Grievance Forms and, for the Bierman et al. grievance, the Denial Letter and does not include the issues newly raised by the Union in its Response submission. The latter are improper expansions of the grievances.

100I further find that the grievances before me are, in substance, classification grievances. Therefore, I conclude that the Board is without jurisdiction to deal with the grievances.

101Given these conclusions, it is not necessary for me to deal with the additional preliminary objections raised by the Employer: that the Union has failed to make out a prima facie case, or that the grievances lack the necessary foundation in the collective agreement, and I decline to do so.

102The grievances are therefore dismissed.

103I remain seized in the event that the parties have any difficulties regarding the interpretation or implementation of this decision.