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HomeMy WebLinkAbout1990-0925.Cunningham et al.96-02-02‘.Y /’ ONIARIO EMPi o>.cs iN / n CI~IIHOIINE CROWNtMPLOwCS ix , ‘!,Nrnili~ GRIEVANCE C(lMMlSSlON DE SETTLEMENT REGLEMENT BOARD. DES GRIEFS Under .THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE GRIEVOR FOR THE EMPLOYER REARING Before THE GRIEVANCE SETTLEMENT BOARD OPSW (Cunningham et al)~ - and - Grievor The Crown in Right of Ontario (Ministry of Housing) Employer M.'~Gorsky vice-chairperson G. Majesky Member D. Clark Member N. COlenan Counsel Gowling, Strathy & Henderson Barristers & Solicitors H. Dyer Counsel Miller, Thomson Barristers & Solicitors December 6, 1995 DECISION The decision on the merits in this case is dated January 9, 1992. All of the grievors were, at all material times,~ employed by the Metropolitan Toronto Housing Authority ("M.T.H:A.") as Inspectors and Contract Administrators, and were classified as Services Officer 1 (atypical). The grievors were either Construction Inspector.and Contract Administrators, Electrical/Mechanical Inspector and Contract Administrators or Painting Inspector and Contract Administrators and sought a Berry order that their positions be reclassified retroactive to 20 days before the date of their grievances and that they be compensated for all lost wages, benefits and interest, such reclassification to be completed within 90 days of the Board's decision. They also requested that the Board remain seized with respect to the implementation of .any remedy. In its decision, the~Board found in favour of the grievors and directed the Employer "to properly classify [their] positions within 120 days of the issuance of [the] award." The decision also provided: The Grievors shall be compensated retroactive to 20 days ) prior to the filing of their respective grievances. They are entitled to interest in accordance with the formula establish& in Re Hallowel House Ltd., [198Ol O.L.R.B. Rep. Jan. 35. 3 The decision also provided.that the Board would remain seized of matters invo.lving its implementation, including compensation. In the normal course, it would be expected that the grievors would have been 'reclassified by the Employer by June 9, 1992, and that the matters relating to. compensation would have been dealt with within a reasonable period thereafter. The Board was reconvened, at the request of the Union, in order to deal with the dispute between the parties relating to the compensation payable to one of the grievors, Ron Legault. Exhibit 2 filed in connection with the hearing onthe merits on June 29, 1991, was a grievance,. dated March 28, 1990, filed by Brian Cunningham, which states: "we grieve that our position be properly classified," and the settlement desired was: "that we be classified as Contract Co-ordinators Construction Superintendent %3." Although the grievance is only signed by Mr. Cunningham, the space where the name of the grievor is to be.placed contains the words "see attached list.!' The attachment to the grievance contains the names and signatures. of: Lloyd Ali, David Cobden, Gerry Ferracane,, Pasquale Garino, Terry'Gunton, Arnie Mortensen, John Sullivan, Joseph Szamosi, Mon Tam, Tom Tung, George Brown and George Raso, as well as that of Mr. Cunningham. 4 In the Union Statement that was made pursuant to the direction of Chairperson Shime ; and which was responded to by the Employer, paragraphs 1 to 4 identify the "grievers" as follows: 1. All the Grievors are empl,oyed by the Metropolitan Toronto Housing Authority ("MTHA~~) as Inspectors and Contract Administrators, and ares classified as Services Officer 1 (atvoical). A cooy of the Class Standard.for Services Supe&sor 1, which-is the standard for Services Officer leas well, is annexed hereto as Exhibit "A". 2. The Grievors, Cunningham, Ali, Cobden, Convery, Garino, Goddin, Szanmosi (sic), Tung, Mortensen and Ferracane are or were Construction Inspector and Contract Administrators. A copy of their Position Specification, is annexed hereto as Exhibit "Ei". 3. The Grievors, Gunton, Sullivan, Tam and Legault are, employed as Electrical/Mechanical Inspector and Contract Administrators. A copy of their Position Specification, is annexed hereto as Exhibit "C". 4. The Grievors, Brown and Raso are employed as Painting Inspector and Contract Administrators. A copy of their Position Specification, is annexed hereto as Exhibit "D". '~The Employer, in its response to the Union Statement, accepted the facts contained in the above-quoted paragraphs Although not referred to in the grievance filed by Mr: Cunningham, and although their names are not found in, nor did they sign the page attached to the grievance above referred to, Messrs. Convery and Goddin, referred to in paragraph 2 of the Union I Statement, and Mr. Legault, referred to in paragraph 3 of the Statement, are shown as grievors. As the Employer accepted paragraphs 2 and 3 of the Union Statement, they were regarded as 5 grievors in the matter before us, although their formal grievances (if any) were not filed with us at the hearing on the merits, In fact, at the time of that hearing,. no mention was made of any grievances that they had filed. In paragraph 10 of the Union Statement, it is provided that: The Union intends to call the following grievors as representatives of the entire group to give testimony binding all grievors: Ron Legault (Electrical/Mechanical), George Browns (Painting) and Brian Cunningham (Construction) .I' In fact, Mr. Legault did'testify as a representative grievor on behalf of the Electrical/Mechanical group set out in paragraph 3 of the Union, Statement. Exhibit 5, filed at the reconvening of the hearing on December 6, 1995, is a memorandum dated October 25, 1994, addressed to.Mike Rose, Director, Technical Services, from Bob Ballantyne, Manager, Human Resources, both with MT?iA, which is as follows: RE: SALARY ARBITRATION AWARD IMPLEMENTATION As you know, a recent arbitration award has resulted in the reclassification of three positions within the Technical Services Branch, namely, Mechanical/Electrical Inspector/Contract Administrator, Construction Inspector/Contract Administrator, and Painting Inspector/Contract Administrator. Further to Caroline Craig's e-mail to you ,011 September 23, 1994 we are currently processing: ,6 I. Retroactive payments based on the revised wage scale for these positions (attached). II. Different retroactive payments to eligible employees who fall into each of three categories as follows. (j-1 Employees who grieved are eligible to receive a retroactive salary adjustment effective February 28, 1990,. twenty days prior to the filing of the grievance. The following. employees signed the grievance: Lloyd Alli (sic) Joe Szamosi Dave Cobden John Sullivan Brian Cunningham Mon Tam George Brown Tom Tung Arne Mortensen George Raso Gerry Ferracane Pat Guarino (sic) Terry Gunton (ii.1 Employees who did not grieve, for whatever reason (including that they did not start in the position until after the grievance was filed, or that they were acting in another position at the time of the grievance), are eligible to recieve (sic) a retroactive salary adjustment effective July 23, 1992. This date is significant because it represents the date when Management presented the Union with the new standards for the new classifications: Contract ~Administrator, Capital Projects and Coordinator, Painting Program. The selection of this date as the effective date for retroactive salary adjustments is consistent with OPS practice on similar matters. The following employees did not grieve, but will receive retroactive adjustments as described above: Frank-Ierullo Sean Convery Burt Henderson Ron Kerr Ron Legault Mike Zentena (iii) Employees who started in the position after July 23, 1992, are eligible to receive retroactive .salary adjustment effective their first day in the position. The following employee falls into this category: Namat Bashori II I. Interest payable on all retroactive monies up to July 23, 1992. We have been advised by Negotiations Secretariat, OPS, that interest is owed only until July 23, 1992. Before that date, Management is solely liable for the incorrect wage rates for the positions. However, after that date, both Management and the Union are jointly responsible for finding an appropriate wage rate. Therefore, only those employees in the first category above are eligible to receive interest. We have been provided a complex interest calculation formula used in the OPS and agreed to be OPSEU. In the interest of time, retroactive payments, excluding interest, will be issued on the next pay, November 3rd. I will advise you of the expected pay date for interest when the calculations have been completed. In the meantime, the above will bring you up to date on the implementation of the award and provide you with information to respond to questions from your employees. It is evident from Exhibit 5 that only the grievors who signed the Cunningham et al grievance were regarded as eligible to receive the retroactive salary adjustment effective 20 days prior to the filing of the grievance on March 28, i990. It is also evident that Mr. Legault and,Mr. Convery were listed in Exhibit 5 among a group of employees who were regarded as not having grieved and were treated as only being eligible to receive a retroactive salary adjustment effective July 23, 1992, being the date when the Employer presented the Union with the new ciassifications. One~of the persons identified as/a grievor in the Union Statement (Goddin) and accepted b>, the Employer in its Statement, 'does not appear in Exhibit 5. 8 In addition, no interest was paid to Mr. Legault or Mr. Convery for the reasons set out in paragraph III found at page.2 of Exhibit 5. It would also appear that no interest was paid to Mr. Goddin. It was the position of counsel for ,the 'Union, on the reconven,ing of the hearing on December 6, 1995, that in accordance with the provisions of the decision of January 9, 1992, Mr. Legault was entitled to "be compensated retroactive to 20 days prior to the filing of" his 1988 grievance. At the reconvening of the hearing on December 6, 1995, The .lJnion filed a grievance, which was marked Exhibit 2, which is dated October 5, 1988, in which he claims to have been improperly classified and requests reclassification as "Contract Co-ordinator Classification Services Supervisor 3." Counsel for the Union regarded the Board's decision on the merits, in its use of.the words "to the filing of their respective grievances" to have referred to Mr. Legault's grievance as well, and that the 20 days prior to. the filing of his grievance was 20 days prior to October 5, i988. Counsel for the Union stated that he did not know.whether Mr. Legault's grievance (Exhibit 2) had been filed as an exhibit at the hearing of'the matter on the merits on July 29; 1991. He added that if this were the case, that would be "determinative of the issue. I1 ., 9 Counsel for the Union referred to the Union Statement and observed that Mr.~ Legault was included as a grievor in paragraph 3, which Statement was accepted by the Employer in its Statement in response. It was submi~tted that even if Mr. Legault's grievance was not before the Board at the July 29, 1991 hearing on the merits, the language of the decision contemplates there being such a grievance and Exhibit 2 filed with us at the continuation of the hearing on December 6, 1996 is that grievance Counsel for the Union stated that after the issuance of the Decision, on January 9, 1992, there were protracted negotiations concerning the creation of the new classification and the wage rate to be attached to it, with'the latter issue being said to be'the "heart of the matter." After a new classification in the Technical Services Branch and a ne.w wage rate were arrived at, the issue arose concerning what retroactive compensation was payable. Counsel for the Union referred to the Employer's position as set out in Exhibits 5 and 6. Exhibit 6 is a memorandum from Mr. Ballantyne to Mr. Legault, dated November 23, 1994, and states: The cheque which you received on November 3, 1994 comprised Of a retroactive increase incorrectly based on the "promotional" implementation method. We have submitted revised documents to Payroll for processing under the "step to step" implementation 10 method. You can expect to receive these adjustments on your December 1st pay cheque. Your eligibility for retroactive adjustments has been extended to the date you returned to the position from your Leave of Absence. ~The arbitration award issued for Cunningham et al. addressed only the group grievance filed in 1990. As such, we are not able to extend its award to your 1988 grievance. . Referring to Exhibit 6, counsel for the Union stated that there was a revision of the Employer's position as it related to Mr. Legault, and' his entitlement under the award was made retroactive to his return in September of 1990 from a leave 'of absence commencing in September of 1989. His request for retroactivity based on his grievance (Exhibit 2) was rejected by in Exhibit 6. the Employer for the reasons set out In summary, counsel for the Union stated that Mr. Legault was entitled to retroactivity based'on the filing date of his grievance (Exhibit 2), and he relied on the Employer's agreement that Mr. Legault was properly identified as a grievor by the Union, which status was accepted by the Employer in its response to the, Unit!? Statement'. It was submitted that Mr. Legault waanot one of the grievors referred to in the Cunningham et al grievance, and his entitlement to retroactivity was based on when his grievance was filed in 1988 Counsel for the Union asked that the Board remain seized in the event that the parties are unable to agree as the amount that 11 Mr. Legault is entitled to on. the basis of the retroactivity claimed on his behalf. .Counsel for the Employer also stated that he did not know whether Mr. Legault's grievance was .filed as part of the original proceeding. (In fact it was not) He acknowledged that if this were the case, then Mr. Legault must succeed as the matter would be "moot." If Mr. Legault's 1988 gr,ievance was not filed, then the only matter properly before the Board when the matter came on for hearing on July 29, 1991, was that.of Cunningham et al., which was not signed by the grievor, who was then on the leave of absence above referred to. Counsel for the Employer referred to the fact that Mr. Convery, who was referred to in the Union Statement, did not sign the.Cunningham et al grievance, and ,there was also no reference in the decision on the merits to any grievance filed by him. It was the Employer's position that what was "litigated" at the hearing on the merits was the "group grievance," which should be regarded as including Messrs. Convery and Legault because they were incumbents in the positions allegedly misclassified. The Employer, in its Response to the Union Statement recognized this to be the case. , 12 The Union, in paragraph 2 of. its Statement, referred to Mr. Convery as one of the grievors, even though there was no indication that he was one of the signatories to the grievance. The~Union also recognized Mr. Legault as one of the grievors, in paragraph 3 of its Statement. Counsel for the Employer indicated that the Employer recognized that all the individuals shown as grievors .should be treated similarly, and indicated on its behalf that it was prepared' to allow Messrs. Convery and Legault to be treated in the same way as the, other incumbents. It was submitted that what the Union is endeavouring to do at t this time was to expand its original submission, as set out in its let,ter from the'union to the Registrar of the Board, wherein the Cunninghame et al. grievance was enclosed and a request made to arrange for a hearing of that grievance before the Board. Counsel for the Employer stated that the Cunningham et ~a1 grievance was the only one before the Board when it decided the matter on the merits, and the,way in which the claims of Messrs. Legault and Convery came before the Board was as a result-of thei,r being treated as grievors in the March 28, 1990, grievance. '- It was submitted that the Record would show that there was no agreement to expand the Cunningham et al grievance so as .to 13 consolidate it with Mr. Legault's October 5, 1988, grievance (Exhibit 2). From a jurisdictional standpoint, the parties were bound by the submission to the Board of the March, 1990 grievance, and the Board lacked jurisdiction to deal with any other grievance Accordingly, the Board was said to lack jurisdiction to now unilaterally incorporate Mr. Legault's October 5, 1988 grievance into the-original proceeding in order to provide him with the remedy that he seeks. Counsel for the Employer also submitted that his position must be correct because of the absence of evidence before the Board that Mr. Legault's October 5, 1988, grievance had ever been processed through the grievance procedure to the point where it was in. a position to be referred to arbitration. It was further submitted that in the absence of evidence, the Board must conclude that Mr. Legault's October 5, 1988, grievance was not part of~the submission to arbitration and was abandoned when it was not pursued further. It was submitted that there was no evidence to show that Mr. Legault's grievance had been processed in accordance with the requirements of Article 20.13-: Where a grievance is not processed within the time allowed or has not been processed by the employer or the unionwithin the time prescribed it shall be deemed to have been withdrawn. Reference was also made to Article 20.16: The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreement. It was submitted that the position taken by the Employer in Exhibits 5 and 6 was consistent with its position taken before the Board. Mr. Ballantyne, in Exhibit 5, took the position that Messrs. Legault and Convery were not in a position to claim retroactivity along with the other grievors, although there was some change in his po.sition for the reasons set out in Exhibit 6, as it related to Mr. Legault. It was also submitted that the provisions with respect to grievances found i&the collective agreement contain no reference to the filing of group grievances and, therefore, the Board ought to regard each of the grievors who signed the Cunningham'et al grievance to be individual grievors. In reply, counsel for the Union stated that that Board would have jurisdiction to hear Mr. Legault's grievance if there was a waiver of the timeliness objection. It was submitted that the jurisdiction of the Board was expanded by agreement of the parties, I = and there was no limit on its jurisdiction to decide Mr. Legault's grievance. It was submitted that Mr. Convery was the person who had replaced Mr. Legault when Mr. Legault was on a leave of absence and, as such, had a "peculiar" status. Counsel for the Union stated that he was not aware that Mr. Convery had any individual grievance outstanding and therefore no issue was taken with the position of the.Employer if Mr. Convery is compensated in the same manner as the persons who signed the Cunningham et al grievance. Mr. Legault, on the other hand, had an outstanding grievance dating from October 5, 1988,. and the fact that his case was dealt with,along with the ~Cunningham et al. grievance did not affect his rights. It was submitted that the decision of the Board must be read as referring . to different grievance dates. In the circumstances, Mr. Legault is entitled to rely on the date he filed his grievance, being October 5, 1988. Discussion and Decision 1. When this matter came before us for hearing on the merits on July 29, 1991, the only grievance before us was that of Cunningham et al, entered as Exhibit 2. Even if that grievance could be regarded as a group grievance, it still remains "an accumulation of individual grievances." See Brown and Beatty, Canadian Labour Arbitration (3rd edition;, para. 2:3120. __ I . 16 2. At no time was there any request made to consolidate Mr. Legault's grievance with the Cunningham et al grievance. Nor was there any alternative request made to have the Legault grievance heard at the same time or immediately after the hearing -of the Cunningham et al. In fact, there was no reference to the Legault grievance until the reconvening of the hearing in order to adjudicate on the difference between the parties as it related to the retroactivity payme nt to which Mr. Legault was entitled. 3. We also note, that in addition to Messrs. Legault and Convery, Mr. Goddin was shown as one of the grievors, although none of them signed the Cunningham et al grievance. No indication was given to the Board as to whether Mr. Goddin had filed his own grievance. 4. In the circumstances, and on the facts before us, we must conclude that the only grievance that was before us was that of Cunningham et al. We~do not have to decide whether it was a group grievance because even if it. was it represented a ~number of individual grievances. The parties were, by .their 'actions, agreeable to proceeding with the matter, treating Mr. Le,gault as a grievor with'respect to the only grievance before us; just'as if he had signed that grievance, and his rights were determined accordingly. In fact, Mr. Legault was ~put forward as the representative grievor for the grievors ~employed as Electrical/Mechanical Inspector and Contract Administrators. That I ’ I 'I is, the parties were prepared to treat him as.being in exactly the. same situation as the grievors he represented. 5. We cannot regard the parties'. agreement, as manifested from the Union Statement and the Employer's response to it, ads going beyond treating Mr. Legault as if he were a signatory to the Cunningham et al grievance. To accept the Union's ,position, we would have to go much farther than our finding based on the Employer's acceptance of paras. 1-4 of the Union's statement. On the facts before us, we cannot find: (1) that Mr. Legault's grievance had been processed through the various stages of the grievance procedure; and (2) was referred to arbitration. We had no evidence presented was to how this happened, and, therefore are not in a position to find that the Employer was agreeing to the consolidation of Mr. Legauit's grievance with that of Cunningham et al., whether or not it was properly processed through the grievance procedure. In the 'absen,ce of any evidence to support such a finding, we conclude that we have no authority to deal with Mr. Legault's October 5, 1988, grievance. 6. However, we did have and do have authority to deal with his claim that he was misclassified, treating him as a grievor in the Cunningham et al grievance. 18 I. As a result, he is entitled to be treated in exactly the same way as all of the other group grievors who signed that grievance and is entitled to the same retroactivity and ljayment of interest. 8. The matter is therefore remitted to the,parties to calculate the amounts payable to Mr. Legault and we retain jurisdiction to deal with any difference that may arise between them in relation to that matter. 9. We recognize that Mr. Legault 's entitlement to retroactive pay and interest may be affected by the fact that he was still on a ieave of absence at the time retroactivity became effective for the. signatories of the Cunningham et al. grievance. DATED at Toronto this znd day of February,1996. M.R./ ,JRkf? . Vice-Chairperson. / n \ mber D. Clark, Member