Loading...
HomeMy WebLinkAbout1993-2124.Breski.95-08-041 I .c. EMPLOY& OELA COURONNE 1 : DE L’ONTARIO CO,MMlSSl& DE : -!.: .’ RiGLElblENT ._ : .a DES GRIEFS. -. ‘1. ’ 160 DUNDAS STREET WES7; SUITE 2100, TORbNTO’.ON M5G 128 TEkPtiONEITtLiPHONE : 160, RUE DUNDAS OUES’I; BUREAU 2100, TORONTO (Otj) M56 126 (416) 326- 1388 FACSIMILE/TlkLfkOPIE : (416) 326- 1396 _’ 1 . .., OPSEU #'94AOli-94AO15 j \ _i 'IN THE MATTER\oF AN ARBITRATIGN I- ; . BETWEEN BEFORE .,-FOR THE GRIPVOR, FOR THE EMPLOYER 'HEARING .' ,Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT I(. 'la, Before - ,- (. / THE GRIEVANCE SETTLEMENT BOARD ( OPSEU (B&ski. et al) . I. Grievor 1 ~- and,- 'The Crown in Right of' Ontario .., (Niagara Parks,Cotiissio?) Employer F. Briggs Vice-Chairperson : , _ / ,. ..M. McFadden .' Counsel ... . ,Koskie & Minsky -1 *. .., -, ' / - Barristers C,Solicitors 1, C. Zabek Counsel Hicks, .Morley, Hamilton; Stewart f-'Storie .', Barristeys & Solicitors Y June 16, 1995 i. / I ' . I', ,, .I . . l r .- , . / i :,~ : -. .‘r ‘. , i ., ’ v’ ‘. There were four grievances filed inNc&nber of ,,. .* : ,. .? \ . :. >- ‘.. ., : :. ,. . . ,I’ ‘. 1993, by Radio &patchers employejd ’ :. . , by the Niagara Parks Corknission. Each griev.or alleges .that he has been tiproperly .. : . ckssified because his classification no’longer,existk. They ask, by bay of remedy, to be ‘- classified as a Communications Operator 2. : ’ . ‘. I Rather than proceed to’ a hearing on the meriti ‘of whe’ther the @evMs: are properly , . i. .. classified, the pdrties’agreed that, as a preliminary matter, I make +,deter@ination’which might ,assist the ,parties k resold the matter.. ,The Union resented, its right%6 argue the I ‘grievances f;llly in the event that. I should find in favour of the Commission. , :*tp .’ ’ . . Th& relevant, articles of the.. Collective Agreement .between the p&es, which expired December 31, 198% .providec$ ., “. : ‘., . . 4.01 (a) t’ Salaries shall be as per the attached Appendii II, Part A which forms part of thii Agreement. In addition, where appliite, the Commission agrees L _’ to implement equivalent salary agreements to those granted to- CM . . Servants as a resuk’ of negotiatkxrs by .The ~~ntarlo Public.Service Employees Union with the Government of Ontano or as a result of the .. ‘. ‘. 3rrplementation of an Arbitration Award. In the same manner and effective , .\ ; on the same dates as in The Ontario Public Service. ,’ Appendii II Unit Classirrcations Salary Ranges .~i y ._ I iI C.S.C. :, CLASSlFlCAllON - EFFEC. . .’ NO. / SCHEDULE DATE 1 \ MS. - 05 -’ Radio Operations I I 16793 Radio Operator 2 .? \ .- : \ . Jan i/89 1 Hr. 12.81 Wk. 512.49 I I I ’ ‘\ .F.. : .,,: :..., The salary schedule contains a. level two and three for the Radio Operator ,2 in the Niagara Parks Collective Agreement. ” : \ . . As can be seen from the above, the Commission paid employees the. same salary as their civil service counterparts. Although this had been the practice since the early 1979’s, the. .’ , Commission asked’s Board of.Arbitration to end the practide due to fiscal constraints~ In 1 8 a’ decision dated April -1993, Arbitrator Keller stated, at page 2: I’: ” ’ -. . . Although there appear(slc),to be a great many issuea unresolved, partl~ularly with respect to Seasonal-employees, the diipute in realii hinges on a philosophical diierence between the paniep. OPSEU wishes to maintain and,,arguable, strengthen tradiiional tie-ins tothe Ontarir$Public Servi&: On the other hand, the NPC wiihes to sever that relationship and deal with OPSEU as a local employee for whom terms and .condltions of employment should be establiihed~in accordance with prevailing local industry standards. . ~.. l-h@ at page 12: 1 ,. ! .’ c ; , , .’ After considerable reflection thii .f3oard has determined that it agrees with. the NPd’i : ‘,._ I position. It is not easy to throw out 20 years of history; indeed one shoufd.onfy do SO with ,great careandafter a careful-analysis of a! the factors submitted by the parttes. _ L . ..However. notwithstanding the above, we do not find it appropriate to’change the status quo during the Me of thii Collectee Agreement i : . ..Consequently. an Agreement. commencing &r~uary 1, 1991 and terminating December 1993 is awarded. In keeping with our earlier comments,it is not our intention to alter the Fstatus quo during the iife of this agreement.. me current language in Articles 4.01 (a), 14..01 (a) and 90.01 is awarded. The wording of those -clauses will expire December 30, - 1993 to be replaced, on December 31,1993 with . . . . . . . From.the 1979’s uni 1992, the Radio Operator 2 position.at the.Niagara Park Comn&sion : was paid the same salary as the Radio Operator 2’ position ‘in the public service. Not ‘. surprisingly, the public service had its class standard for its radio operators and the ’ 3 ” Commission had its own class standard. There were sever di&erences in those two I > class standards. 3 In 1992, Radio Operators employed by the public se&e, many of whom weti at level 2, grieved that they were &properly classified. Prior to the arbitration hearing, the parties ’ agreed to a new class standard. The new position was called a Communicatioris Operator.’ ,The Labour Relations myal was called upon to det$mine the appropriate ‘. salary for this new positioi. In May 1992, Vice Chair @ller issued a decision affecting a -. number of Mini&tries and the Union which provided a wage increye of eleyen percetit for : the Communications Operator.2 position, Nroactive to &gust 13, 1990. i i In Octbber 1993,.one of the grievers in the instant qatter became’ aware‘of the disparity bet+veen his pay and that of the Ontario Provincial Police disP;atdhers who work for the .. .- &Iinistr$ of the Solicitor, General. Shortly thereafter, thp grieva%ces were filed. It .was the Union’s position that Article 4.01 provides -that a Radio Operators 2 employed ’ . . . by the .Comm&iofi is entitled to ‘be paid the increased, s&&y awarded to the .. I : It ‘is the Commission’s pbsition that the Comnu.mications~ Officer 2 position is not the . counter&t ,position for the Radio Operators ,and therefore, no monies are owing to the I grievors. ., ‘1 ., 1 / IkIr. McFadden, ‘counsel for the Union, argued that for more than twenty years and by : ^ agreement of-the parties, the Radio Operators received identical compensation to their ’ _ .- ._ ‘. counterparts in the public serkice. Indeed, even their titles were the same. Copies of the _, -’ both Radio Operator 2 cl&s. standards were provided and it was clear that their duties 1 and res~“onsil$lities were different and, presurrkbly ‘peculiar to its :own. workplace. The public service class standard changed as of ,&gust. 13,. 1990, ihen the position title 1 , became Communication Operator 2: Notwithstandhg the change in title.‘and class ’ ..st&tdard, the Union urged that, in both instances, the mam aspect of the job is dispatch. ,_I . . . . I .The grievor-s are -entitled to receive the increase given to the @mmunication Operator 2 ~ t ’ position because of ,the clear language of the’ collective agreement, contended the Union. Article ,4.01 refers to “equivalent salary agreements”: Obviously, the parties intended to ‘tieat ‘likes” alike. Jrticle 4.01 takes’into account the fact that salaries may.change as the result of an arbitration award and that is precisely, what has occtied in the instant matter. ’ ~ I Article 4.0’1 is a broadly worded agreement for future contingencies with explicit reference I to .~arbitration awards. Indeed, article 4.01 was designed for exactly this very type of situation. 1 : / ’ i i 4 , I i * The, Union suggested that nothing turns’ on the title. change from Radio Operator to ‘1 : . . Communications .Operator in the public-service. The ~ommunicatiqns Operator is still the appropriate, Counterpart. .J$ perusal ;cf Radio Operator’ 2 class standards in, both the Commission and the public service will show that the jobs were never identical. Because * : ,:’ ,, , the new title and.class standard were developed and the salary was awarded by way of _’ : I ., I’ an arbitration award, the grievors are entitled to the same .comp&nsation, at least until December 30, ,1993, and the Union requested I’.ma@ such a declaration. It was > I specifically agreed by the .parties that, in the event that I am prepared to make such a declaration’ .&net go on,to make any f&ding regarding retroactivity. _ Ms; Zab& for the Commission, argued that the issue is not as s@nple as the Union has : > suggested. Specifically, the- Union has’ failed to give any ‘meaning to the ,.phrase “in . addition, where apIkl&” as set out in-the second sentence of* Article 4.01. This is a ‘, _’ .9 .situation where’the fact that the &sition of Communication Operator 2 in the public!. .. setice received an eleven percent increase in their.wages, is not applicable. The phrase ’ “not applicable” must have meaning and, in the-instant matter, it means that such increases : s ,- I . . are not automatic. . . ” A. . _ The Commission asserted that ‘the meaning .of “where applicable” can be found- in Appendix II tihich forms part of thecollective agreement. On the salary schedule, at the ‘. J / left side of the’ page “CS.C.“. can be seen. This is an abbreviation for “Civil Service .’ I .’ \ ;. ‘. .._./ :, i . . , i .I . Z. .- ~ .’ 2. I .’ - . . . . .: -. ‘. : , \ : /. -;6 :. ‘. - ,Commission’~ That is the specific number. designated to a particulti position. With some ‘. :_ classifications in the salary schedule, there is a number’ with “AD” which refers to Administrative Services. In some circumstances, such as with Cook’s.Helper, there is no /, ‘_ : reference to a number under C.S.C., but a notation of NPC. .It is therefore clear there are . : ‘. ‘ .instenoes yvhere:the parties have agreed not to adopt. the public service salary but to : . . -_ -. negotiate their ok. This fact was not disputed by the Union for the &poses of this limited question before”th&Board.. The parties specifically agreed that the pay receiyed . . by public service people kho were’s0 classified Gould serve as comparators. I ,~, : ‘. / . . :“y. -. , . \ By the insertion of the public service classification numbers,: the parties expressly addressed the issue of appropriate comparato.rs. The public ser$lce class standard had ” ‘: the position number of’16103 for Radio Operator 2. .That number appears on the, class ,’ -1 ‘. ; standard itself and. is set out-in Appendix II ‘of the Commission’s collective agreement _: ’ .. ’ beside the salaryassigned:to that of,Radio Operators.’ The. position of Communications : Operator 2 had a its own class, standard and the .position number is different, that is 16108. .$ / * A.t time the parties agreed to this regimen, there was much similarity in the duties and . ; / responsibilities of the’ position, Howetir, a corn&son of the Commission’s- I@dio i ‘Operator 2 class standard and that of the public service Communication Operator 2 will ’ , ‘reveal many significant differences. - ‘-,._ ., 3 . . 1 ._ 7 .. , : . . /MS. Zabek submitted’ that article 4.01 has a threshold requirement, that is, Y&ere I. : applicable” and that has not been met in these.circum&nces. Further, the parties chose I I the appropriate comparator, that is 16703 %adio Operator 2.. In the event that a position i .-. ! is reclassified with a new title, class. standard and position number, there is no automatic ‘raise as the result of article 4.01 because the new position &no longer the comparator.. 1 ! Finally, the Commission argued that the- Board was without ‘jurisdiction to make the . . ’ ., declaration as requested by the Union because, ifI.did, I would effectively be altering the. ‘. collective agreement and this is specifically, prohibited by article @.3 and.article: 13.13. Article 4.01 provides that the salary is as set out in ,the appendix and if’1 ordered an increase, I would be changing the position title of 16703 to that of 16706. Ms. Zabek ~ suggested that the Commission’s &xlio Operators are, attem&ing to “ride on-the’coat-tails’; _ c of the Communications Operators. .. If the- ;grievors are improperly classified &d i com@ensated,L suggested.by the Union, then-they.should be obliged to prove that to the ,i Board, : .‘, .:, -. ‘. : In reply, the Union-asked ‘the Board to consider that “where. applicable” is prefaced by “in \ ‘addition”; It is therefore, clear that if the Commission’s view &as correct there would have been no need for Article 4.01. The bargain between the .parties was that the compensation would be the same, plus whatever the public service get “in addition”. The . . / . . -‘. !. . . .1 1 .r .._,- . _’ . ;;: ,. ‘. \ : -. . ,. t ‘. 0 .-. . 4 _’ . ;>.,: : “,. , <. ‘. -.. _. / >’ :, \ ‘:. . . s’ _., : j I. , ‘3.. 8 ,;. : : I I :). ‘Union is not a&ing. for an enlargement in the collectiveagreement, only,a declaration that ,’ : .: it has been violated. .- ~. I, 1 ..’ 5 2.’ ‘_ DECISION .I’ : ,’ . . ‘_ I ‘\ (. After consideration of the matter, I am of the view that I cannot provide .the-declaration 1 -_ that the Union is requesting. .The negotiated salary ‘scale in the collective agreement .. provides that the appropriate’method of indicating the “tie-ii’ was by way of &ii Serk, “+ . Commission -XQmber5 The evidence. was that,,,for the last twenty years, the. Commission’s -. . -. i Radio Operator 2, position r&&d the same salary as the Radio Operator 2 position I _’ , within-the public service. ’ . : r .,: ,’ : : .. . : ,’ ._ _ ‘-’ Both parties referred to theRadio Operator class standards inboththe public service and. ~.. . the Commission as well ‘as the new’&& standard- for the~Commu@ations Operator 2. The sikilarity or dissimilgiity of those positions at any .pa&cul~ point’ in time is net / ./ -. determinative of the matter as it has been put before me. .That. cpnsideration-would be 1 : .., more appropriately taken’ into account if the issue: was whether the. grievers were ‘, . . improperly: classified. ,. .- ,. . \ ’ ‘1 : 7. As a- preliminary matter; I cannot find that the grievors are entitled,to an eleven percent ” I : i;: increase, just because the employees who were once their counterp’aits-vere, re&assifled. ., , . r . . ‘. . . .- I_ _’ I .’ ‘. ‘, _. : 9 1 : to Communication Operators and received such an increase. Simply put; it- is not the Radio ‘Operators 2 position within the public service that is receivirig eleven percent more . . .’ , . . . compensation than the grievor-s. It is the Communication 0perator.positio.n. I accept the Union’s argument~that.“in addition” as set out in Article 4.01 must be given some meaning. I accept the submissions made by the ,Commission on this point. i I am .of the view that ,it ._ I ’ takes into account those situations where, for ekmple, the Radio -Operator.. 2 position within the .lx.&lic setice got a raise in compensation as the result of an agreement or an arbitration award. If the public service position of Radio Operator ‘2, classification number’ 16703 hadrec@ed ‘an eleven percent increase, the Commission vvould have been obliged to implement ‘the “equivalent salary agreements” to its’ own Radio Operators.. ” -_ ’ ; I : L_ 2 _ : 9 However, the parties agree.dto tie themselves to the classi&ations of the public service i 1 _. ~ : and ,they specifically did. so by way of civil service conkission ‘number. ./ The‘ .~ Communication Operator 2 position in the public service is not the same classification title ,’ ~ .- . j or civil service. commission number as’ the Commission’s Radio *rator 2 position. If it : . were, I may well- have found for the Union. -That they differ leads me to the inevitable .-. / . conclusiqn that the- grievers are not entitled to the increase in compensation received by the civil service Communication Operators as of August, 1990. j .,- :. -1 / Signed in Toronto this ..4t klay of August, 1995. /’ 1 , ‘. . i -.I_