HomeMy WebLinkAbout1986-0092.Anderson and McColl.88-06-17OU92/86 '3229/86
.IN THE MATTER OF AN ARBITRATIUN
Under
THE CROWN EMPLOYEES COLLECTIVE BAKGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Anderson et al M. McCall)
- and -
The Crown in Xight of:Ontario
(ministry of Transpoitation
and Communication)
Before:
R..J.'Drlisle Vice-Chairman
.I. Solberg Member
H. Roberts Member
For the Grievor:
K. Stoykrwych
Counsel
Cavalluzzo, Hayes & Lennon
Barristers & Solicitors
For the Employer:
K.8., Cribbie
Staff Kelations Advisor
Human Resources Branch
Ministry of Transportation
Grievor
Employer
Hearinq: November 4, lYt)7
-,l -
DECISION
This matter involves ‘some fourteen individual’grievances by
senior designers in London, Ontario. G.S. Anderson is taken to
be representative of each of the grievors and their success or
failure is contingent on his. In January, 1986 he, along with
the others, was reclassified from Technician 3, Road Deeign up to
Technician 2, Municipal Engineering (Atypical). His complaint is
with respect to the extent of retroactivity to which he is
entitled. The Ministry maintains he is.entitled to retroactivity
to January 1, 1986 whereas the grievor claim8 entitlement to
October 16, 1984.
Gordon Mckinstry, a senior designer, who., the parties agree,
performed the same job as the grievors, described that job and
their attempts at reclassification. The job is to make up plans
and tender forms and to estimate quantities for road
reconstruction and maintenance projects. . Mckinstry described a
meeting ,of Technical 3's held in October 19, 1979 and the
establishment of a Committee, (Exhibit 1). The meeting was
attended by grievor. He noted that .while their position
description was apt they wanted more money. McKinstry
volunteered for the Committee. At their next meeting, November
20, 1979, the Head of Planning and Design, A. Wittenberg, and R.
Wilkins, Office Manager, attended. Concerns were aired, regarding
the growing divergence in salaries over the years between
Technical 3's and Project Managers. (Exhibit 2). After that
meeting the ,Technical 3's resolved to re-write their job
..:
,., .:-
.: ,‘.
(: :. ,-2- c:;; . . .
description with the help~of Wilkins. A number of drafts were
prepared. On. April 3, 1980, McKinstry, Committee Chairman, wrote
to Wittenberg, expressing impatience at the lack of any action.
(Exhibit, .3). By memo dated April 9, 1980, Wittenberg assured
McKinstry the matter was being given high priority. Another
committee meeting, chaired by McKinstry, was' held on April 14,
1980 to review the latest draft of their job description and
changes suggested by Wittenberg, (Exhibit 5), and the results of
that meeting were communicated to Wittenberg, .April 18, 1980
(Exhibit 6). MoKinstry met with Wittenberg April 25, 1980 and
provided additional requested'.information to him by a lengthy
letter, April 25, 1980 (Exhibit 7). On May 21, 1980 McXinstry
wrote to Wittenberg expressing impatience and stating that if
progress was not made quickly "we will take our complaints to a
higher level." (Exhibit 8). On June 5, 1980, McKinstry,. as
Chairman of the Committee, wrote to A. McConnell, Wittenberg's
supervisor, asking for a review (Exhibit 9). On June 23, 1980,
Witbtierg wrote to McKinstry advising him that after an in-depth
review he was satisfied that tha proposed job description added
nothing to the existing position specification and requested that
McKinstry disband the Committee. Wittenberg did note however
that he would recommend **to Management" a review of salaries.
(Exhibits 10). On behalf of the Committee McXinstry wrote to
Wittenberg June 26, 1980, emphasizing their concern regarding,.the
spread in salary between Technical 3's and Project Managers.
(Exhibit 11). On July 7, 1980 Wittenberg wrote to McKinstry that
he had recommended "to Senior Management" to review that spread
(:;, -3- .’ (.. .
-and noted that with his.reconmendation having been forwarded "to
Head OfficeI' he considered the matter closed until Head Office
advised further. (Exhibit 12). McKinstry noted that the office
was an open concept, other Technical 3's knew through the
grapevine what was going on and he also circulated written
material tom the members of the committee. 'On Octob~er 17, 1980,
McKinstry wrote to A.. McConnell expressing impatience at the lack
of any reply to Wittenberg's recommendation (Exhibit 13). There
was no response. According to McKinstry nothing further happened
and he concluded that nothing was going to be done. Later, based
on a rumour that persuaded h,im then spread would become greater,
he filed a grievance November 5, 1984. McKinstry.had arranged in
the Spring of-1904 for a meeting with Patterson, Wittenberg's
replacement. On behalf"of the Technical 3'8, concerns were
expressed about any reorganization that might aggravate the
spread. Patterson refused to rewrite the position specification
but set up of Committee of five management people to evaluate the
job and a new position specification was produced (Exhibit 14).
Mckinstry testified the document was fair and that his job hadn't
much changed between 1980 and 1984. He was advised by Patterson
that he would take the doctient to a meeting with other regions,
but that he couldn't say whether the position would be re-
evaluated. McKinstry then decided to grieve. He testified that
when he grieved he was acting on his own but his colleagues
learned of it through the grapevine. On January 8, 1986 a
memorandum of settlement was entered into between the Ministry
.and McKinstry. (Exhibit 16). By the memorandum McKinstry was
reclassified up to Technician 2, Municipal Engineering (Atypical)
with remuneration calculated retroactively to 20 days prior to
the date of his grievance: his grievance being dated November 5,
1904, the calculation was to be from October 16, 1984.
Gerald Anderson testified. He noted his attendance at the
first meeting of.the committee.of Technical 3's. He noted that
while he wasn't a member of the,committee he did have some input
into their deliberations and their attempts at new drafts of job
descriptions. He testified. that he assisted his supervisor in '
the drafting of the new position specification. He testified
that while McKinstry wasn't officially representing,the rest of
the grievors he "regarded McKinstry as a spearhead." He allowed
however that "management didn't 'lead me. to believe that
McKinstry's benefits would apply to me -- I just assumed so."
The collective agreement allows 20 days' for filing. a
grievance (Art6 27.2.1) and therefore compensation for a
continuing breach is normally limited in retroactivity to a
period of twenty days before the date of the ,grievance. This
normal rule, according to this Board's jurisprudence, can be
deviated from if it would be inequitable to follow the same. In
Re Smith and Ministrv of Communitv and Social Services 237/81
(Roberts) the Board'noted:
To be successful, such an equity would have to be in the form of a promissory estoppel, i.e., that the representations of (the.
grievor's supervisor) amounted to a clear'and unequivocal promise to the grievor that all aspedts of the 12 grievances, including retroactivity, would be applied across the system: that (the supervisor) intended the grievor to act in reliance upon it in circumstances where it would Abe inequitable
to permit the'Ministry from going back on the promise.
It is clear that in this case there was never any conduct on
the part of management which could be characterized as a holding
out to the grievor Anderson that he would be treated in all ways
similar to McKinstry. Indeed in the grievor's own words
"management didn't lead me to believe that McKinstry's benefits
would apply to me." Complaints by the Technical 3's Chad been
known to management for some time but management's conduct led
McKinstry to believe that management was not prepared to do
anything about it. That's what led him to grieve! Management
was not promising a solution.
We were referred by grievor’s counsel to a number of cases.
In Re Hooner and Ministrv of Government Services, 47/77 (Swan).
the Board was able to find that grievor's complaint had the
"tacit approval from everyone concerned except the classification
officers of the Civil Service CommissioxP. Our situation is
quite different. In Re Curnow and. Na 'and Ministrv of
Transoortation and Communications, 635/84 (Samuels)
**the grievor and his supervisors were
extremely disturbed by the classification
from the beginning, and the reason for the
grievor’s delay was that his ?upervisors
continued to attempt to have ,the
reclassification corrected."
Again,. that is not our case. Counsel for the grievor relies on
Re Bo le and M n'st 1
0675/85 (Bran+) where the Board refers to a policy in
I
.):.’
..
: ..,I
: ~>
competition with the "20 day rule":
Yet there is a competing policy which comes into play in this case. That is the policy in favour of settling disputes short of involing the ,grievance procedure,and having recourse to the Grievance Settlement Board. A rigid application of the "20 day' rule" would discourage employees from attempting #rough .less formal means to settle their dispute. It would be far 'more desirable to grieve and "lock inI@ a fixed date which would : become the basis for determining compensation in the event of success.
Re Bovle is not helpful to the grievor here. In our case we
see no process holding lout any hope of settling ongoing during
the summer and fall of 1984 which would cause the grievor to
think a resolution short of grievance could be accomplished.
Finally in e C nn c Government Services 550/84
(Samuels) there were representations by supervisors that the
grievers' complaints would be settled.
The'jurisprudence of the Board seems to dictate that the
normal rule ought to be followed. Counsel for the grievor says
we should focus on the equities. He maintains it's not fair to
limit the grievor's retroactivity. All employees should be
treated alike. There is obviously something compelling to a
decision-maker to give effect to the equities of the case. One
could' reason that by expanding the date for retroactivity one is
notpenalising the employer but rather properly reimbursing the
employee for work done while he was improperly classified at a
lower level. These are not damages to be awarded against the
employer butt rather restitution of monies properly owing to the
employee. ,But, if we're concerned only with the equity of the
situation why. should we stop at October 16, '1984. The evidence
is that McKinstry and the others did the same work and that work
had not really changed since 1980. Why n& award Anderson
retroactivity to 19807 Why should McRinstry's decision to settle
for a later date prejudice the grievor's equitable position?
The answer is that this Board is not a court of equity to be
governed by the length of the Chancellor's foot. We are called
on to interpret a'contract and to determine whether there has
been a breach. The contract dictates the 20-day rule. l'n
exceptional cases this Board will depart from the rule when one
party has led the other astray. That is not this case.
The grievance is dismissed.
Dated at Kingston this 17th day of June, 1988.
-
R.J. Delisle, Vice-Chairman
aI dissent" (Dissent attached)
J. Solberg, Member
Ii. Roberts, Member
I
:. ,
DISSENT
There's more to this case than arcane references
to British peers. This Board may not be a court of equity, but
surely it has a responsibility to balance fairly the interests of
the parties in order to achieve an equitable result.
The Board denies retroactivity on the basis .of
particle 27.2.1, which has been traditionally relied upon to limit
the term of any retroactive payment.: The Board #uses this
benchmark in the belief that to do otherwise penalises the
employer for breach of an agreement of which it was unaware.
,Eut that kind of reasoning fails on both counts in
the ca*e of a classification grievance. In the first place,
there's been no penalty to the employer; quite the contrary, th.e
penalty has been borne entirely by the employees. All that's
happened to the employer is that for a specified period of time,
it has had the benefit of employees at a cut rate cost.
And secondly, how can it possibly be suggested
that management was unaware .of the dissatisfaction of, all the
employees with their classifications from the very.beqinning.
Everyone in the regional office participated in re-writing, the
job description and re-evaluating the classification accordingly.
The employer had to know that a breach of the
collective agreement for one employee constituted a breach for
all employees. In fact, that point is effectively conceded by
the reclassification of all the relevent employees in the
southwestern regional office after the grievance of McKinstry
succeeded.
After all, how could it be otherwise. These
employees work at the same job, perform the same functions, have
the same job descriptions and carry the ‘same
position
specifications. Why would they not reasonably believe that they
ought to and would 'be afforded the same treatment,. both
prospectively ,and retroactively, as Mr. McKinstry.
.To deny those employees the same amount of
retroactivity is to defeat their right to equals treatment because.
of a technicality. A technicality that has little place in a
classification grievance. But more important, it sends a signal
to the employer that it's perfectly acceptable to treat employees
as if their classifications' were based on an individual rather
than on a group frame of reference. And that"s neither accurate
nor fair norhelpful in this employment situation.
J. Solberg