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HomeMy WebLinkAbout1987-2465.Neely and Stewart.89-11-14Between: IN TBE NATTER OF AN ARBITRATION Under THE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLEfiENT BOARD OPSEU (Neely and Stewart) Griavors - and - The Crown in Right of Ontario (ministry of Transportation) Employer Before: For the Grievor: T.H. Wilson F. ColLom H. Knight Vice-Chairperson Member Member N. Luczay J. Paul Grievance Officer Ontario Public Service Employees Union For the Employer: N. Farsonl Counsel Fraser, Beatty Barristers & Solicitors Hearings: February 20, 1989 February 22, 1989 Jean Stewart and Linda Neeley are at present classified at the OAG 10 level, and grieved on October 20, 1987 that they should be at the OAG 11 level. On February 9, 1988 they were both written to by B. Etmanski, the manager, Administrative Services in the Ministry of Transportation and Communications as followsr "This is to confira my decision on your Classification Gr~evaoce at Step 2 as verbally outlined at our meeting of January 29, 1988. "I as recommending the reclassification of your position co a higher level, based on the revised position specification dated February 5, 1988 signed by your supervisors. "As I explained, there is a Ministry procedure to follow when a reclassification could have province-wide impact, and I will initiate this process immediately." Then on December 5, 1988, Etmahski again wrote the grievors and again I set out the entire text. To Ms. Neely, he wrote: "Linda, further to my response to your grievance at Scege 2 dated February 9, 1988, I wish to advise you of the following decision. "Considerable discussion has taken place relative to the role of the Unit Supervisor and the responsibility of the ihcuabent. The Committees addressing these issues have confirmed that certain duties carried out by you as Payroll/Personnel Unit Supervisor were, in fact, more in line with these functions normally assigned to more senior penwnoe~. ror this reason, we sre affording you a temporary assignment for the period June 1, 1987 up to and including Lkcember 31, 1988. For this period you will bs paid as an GAG 11 and will revert to your present classification as of December 31st of this year. "Those functions which represent the sore in depth counselling service, policy interpretations, attendance at interviews, etc. will now be carried out by management staff. h; - 2 - “Please accept my apology for the delays in arriving at this decision. I trust this will prove to be a fair settlement of your grievance. ” TO Ms. Stewart he wrote: “Jean, as you know, considerable discussion and research has resulted since the submission of your grievance at Step 2 and my response of February 9, 1988. “The recommendation of the various Committees addressing this issue to maintain the existing classification of OAG 10 now has the unanimous support of the Operations Committee. “Nay I say that I am extremely disturbed by the delays encountered along the way and for my part, apologise for this. The process, however, has been handled with all due consideration for relative job values and the potential provincial impacts of change. “Please be advised that your grievance is hereby denied at Stage 2. (’ The union argues before this Board that the Step 2 replies of February 9 resolved the dispute inasmuch as they recommend the higher level classifications. The union argues that the Ministry is thereby estopped from withdrawing to a position of placing the grievor6 before this Board at the beginning of the process.’ Futhermore, the letter of February 9, directly identifies the revised position specification as the basis for a reclassification. The Ministry responds to that argument that the first letters only state that it will be recommended and there is a reference to the Ministry procedures: in other words the Deputy Minister’s designate is recommending to the classification committee within the Humah Resources section. It is not ah offer of settlement, nok a decision but a step in the grievance procedure to which the December 5 letters were the final answers, so to speak the end of the Step 2. ‘E - 3 - Alternatively, the Ministry submitted that the decision of the Deputy Minister's designate was wrong and he cannot alter the class standard which are part of Appendix C. The Board, according to this theory cannot enforce such a wrong decision by the Deputy Minister's designate. Finally the Ministry argued that there was an important distinction between finding that the designate made a promise and has to be honoured, but it is not an adjudication on the issue of whether the job is an OAG 11 within the class standards so as to constitute a "usage. " 'The union argued that the December 5 letters were not part of Step 2; they were way out of time under Section 27.4 of the Collective Agreement and indeed the application to the Grievance Settlement Board had already been filed on February 23, 1988. Even the December 5 letter Itself to Ms. Neeley does not recile from admitting that the duties beinq performed were normally assigned to more senior personnel. The union stated that the third paragraph in the February 9 letter refers to other grievances. The union drew the Board's attention to its decision in Brown and the Ministry of & Attornev General (G.S.B. 188/82 (March 8, 1988)). In that case there was a similar claim of settlement when the Deputy Hinister designate on Stage 2 wrote: "I find that the evidence does not support Ule classification of your position as Clerk 6 General. "Moreover, I am of opinion that your position should be properly classifiable within the Management Compensation Plan. "Accordingly, I am requesting your Personnel 'Officer by copy hereof co redescribe and reclassdfy your position in the proper Management Compensation Plan format and level. . ." - 4 - The grievor and the union agreed. The union extended the Stage 2 time limits to permit the designate to respond to the issue of the exact classification into which the grievor would be placed and retroactivity. Unfortunately, about a month and a half later the Deputy Director of Personnel wrote the grievor confirming the grievor's existing Clerk 5 classification. The union argued that the designate, Chan, had the authority under Step 2 and the Ministry was bound. The employer argued that under the jurisprudence of the Grievance Settlement Board at the time this Board could not have considered a Management Compensation Plan classification and that Chan had no right to go beyond deciding that the grievor was not capable of being classified as Clerk 6 General. To this the union replied, Chan's duty is to answer the real problem in an attempt to settle the grievance and is not involved in issues of "jurisdictional error." 1. 2. 3. The Board decided: that it has no jurisdiction to review Ghan's decision or to review his jurisdiction to make such a decision; the Board had to accept Chan's letter at face value as a decision of the Deputy Minister's designate which was acceptable to the grievor; the decision was that she should be classified in the Management Compensation Plan and the only questions - 5 - remaining to be litigated were retroactively and where in the Management Compensation Plan will the grievor be properly classified. At page 8 of the Decision, Vice-Chairperson Gail Brent writes: “In our view the siCuacion before us is one where an Employer representative has made a decision as he is reguired to do under the collective agreement. Mr. Ghan was not d decision maker, in the neutral thzrd party sense, he was a designated representative of the Employer, one of the interested parties, who has to answer the grievance for the Employer at second step after conducting a hearing. This he did. ” It is important at this point to set out the very language of Article 27. 21.3.2. If the grievance is not resolved under Stage One the employee may submit the grievance to the Deputy Minister or his designee within seven (7) days of the date that he received the decision under Stage One. In the event that no decision in writing is received in accordance with the specified time limits in Stage One, the grievor may submit the grievance to the Deputy Minister or his designee within seven (7) days of the date that the supervisor was required to give his decision in writing in accordance with Stage One. 27.3.3. The Deputy Minister or his designee shall hold a meeting with the employee within fifteen (15) days of the receipt of the grievance and shall give the grievor his decision in writing, within seven (7) days of the meeting. The purpose of the grievance procedure is to attempt to resolve grievances. The second stage is by these provisions from management’s point of view resolved with the authority of ule Deputy Minister. There is authority there in the management person to allow or deny the - 6 - grievance in whole or in part. But when that person writes a-reply & & bindinq on management. It cannot be rescinded by someone else in management. Did Etmanski exercise that authority? He wrote “I am recommending the reclassification of your position to a higher level, based on the revised position specification dated February 5, 1988 signed by your supervisors.” Mr. Chan in Bm spoke of “being of the opinion” and “requesting your Personnel Officer. ” These polite word formulas do not and cannot change the realities. The designate decides. As Vice Chairperson Brent states in BE, if his fellow managers think the designate made an error that is an issue between them. Whether he is “right” or not is irrelevant: he decides for management and they are bound. Etmanski decided that the grievers should be reclassified to a higher level based on the revised position specification dated February 5, 1988. This Board will not permit the employer to recile from that position. That leaves the remaining issues;(l) at what higher level the grievor8 are to be reclassified, and (2) retroactivity. We remit the matter back to the parties to resolve those remaining issues. The Board will remain seised in the event they are unable to settle those issues. DATED at Toronto, Ontario this 14th day of Yice Chairperson