HomeMy WebLinkAboutGoossens 13-03-15
IN THE MATTER OF AN ARBITRATION
BETWEEN:
Fanshawe College
(“the College”)
and
Ontario Public Service Employees Union, Local 109
(“the Union”)
Grievance of Harold Goossens #710939
ARBITRATOR: Mary Lou Tims
APPEARANCES:
FOR THE COLLEGE: Jeff Finley - Labour Relations Officer
Sheila Wilson - Employee Relations Consultant
FOR THE UNION: Gary Siroen - Chief Steward Local 109
Margaret Rae - Representative (on March 8, 2013 only)
Hearing reconvened by teleconference on February 6 and March 8, 2013.
SUPPLEMENTARY AWARD
The March 14, 2007 grievance of Mr. Harold Goossens (“the grievor”) alleged that his
position as Electrician with Fanshawe College (“the College”) was improperly classified at
Payband G. The grievance sought reclassification to Payband I and compensation retroactive to
March 1, 2007.
A hearing was convened on November 30, 2011. The parties agreed at that time that
any compensation owing to the grievor pursuant to my Award would be payable retroactive to
March 1, 2007. An Award dated December 19, 2011 (“the Award”) was issued, upholding the
grievance in part, finding that the grievor’s position was properly evaluated at Payband I, and
ordering that the grievor be compensated accordingly. My jurisdiction was retained to assist the
parties in implementing the Award.
The Union subsequently requested that the hearing be reconvened to address a dispute
regarding the implementation of the Award. There were no objections regarding my jurisdiction
to determine such issue, and the parties agreed that the hearing should proceed by way of
teleconference. After the reconvened hearing via teleconference was completed, the Union
forwarded and requested that I consider what appears to be an internal Union e-mail exchange
regarding this matter preceding the reconvened hearing. The College advised that it had no
objection to my considering such materials.
The parties referred to a number of provisions of their September 2005-August 2008
collective agreement (“the collective agreement”), including those set out as follows:
ARTICLE 7 – WAGES
. . .
7.2
. . .
Effective March 1, 2007, this Article will no longer be applicable.
. . .
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7.3 Progression
7.3.1. Movement Through the Wage Rate Steps
Employees shall progress in accordance with the increments in the paybands as set out
in Appendix E based on actual service in the payband.
Effective until March 1, 2007, employees whose classifications are governed by less than
six (6) wage rate steps shall progress as follows:
- employees in classifications with three (3) steps are paid at the two (2) year rate on
hire into the classification, the three (3) year rate at six (6) months and the four (4)
year rate at one (1) year;
. . . .
A September 22, 2005 Letter of Understanding appended to the collective agreement
(“the Letter of Understanding”) states in part as follows:
IMPLEMENTATION OF THE NEW JOB EVALUATION SYSTEM
Time lines
The new job evaluation system will be in effect on March 1, 2007. . . .
Implementation Guidelines
a) Determination of Payband
Using the new job evaluation system, the College will evaluate a position and determine
the appropriate payband under the new structure. Using the incumbent’s current
hourly rate, the level assigned to the position will be the first level encountered that
contains an hourly rate that is equal to or greater than the individual’s current hourly
rate.
Any position that is evaluated at a payband that does not contain an hourly rate
equivalent to or higher than the incumbent’s current hourly rate will retain the
evaluated payband but the employee will be assigned the “grand-parented” or higher
payband. . . .
. . .
e) Moratorium of Classification Grievances
Effective September 22, 2005, the CRC will issue a moratorium on both reclassification
requests and classification grievances being filed. This will remain in effect until March
1, 2007. . . .
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The parties referred as well to the wage grids found at Appendix E to the collective
agreement and to Appendix E (i) entitled “Classification/Payband Matrix (effective until March 1,
2007)” providing in part for three wage rate steps for Skilled Trades Workers.
The facts giving rise to the current dispute were uncontested. Prior to the March 1,
2007 implementation of the current job evaluation system, the grievor’s position was classified
at Payband 10, and the grievor had progressed to the four year step on the grid, with an hourly
wage rate of $26.63 effective September 1, 2006.
Prior to March 1, 2007, Skilled Trades Workers, including the grievor, followed a three
step wage grid, starting at the two year increment.
Upon implementation of the current job evaluation system, the grievor’s position was
evaluated at Payband G. There is no March 1, 2007 hourly rate at such payband “equal to or
greater than” $26.63, the four year step of the former Payband 10. The grievor was placed at
the two year step of Payband H with an hourly rate of $27.12 effective March 1, 2007. When
the hearing on the merits of this case was convened in November 2011, the parties advised that
the grievor’s position had been re-evaluated at Payband H.
There was no dispute that after the December 2011 Award was released, the College
placed the grievor at the start of Payband I, with an hourly rate of $26.86 effective March 1,
2007. In the College’s submission, this was in compliance with the parties’ Letter of
Understanding referenced above, and with the decision in Re Fanshawe College and OPSEU,
Local 109, unreported, April 19, 2010, (O’Neil) (“the O’Neil award.”) The College referred to the
Letter of Understanding and took the position that the starting step of Payband I, $26.86, was
the “first level encountered that contains an hourly rate that is equal to or greater than the
individual’s current hourly rate,” which was, in its view, $26.63, the four year step of the former
Payband 10.
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The Union stated when the proceedings were reconvened that it did not in the
circumstances before me “disagree with” the O’Neil award, but that it was of the view that
“special circumstances” here warrant consideration to ensure “a fair result.” The essence of the
Union’s argument was that the grievor’s position was incorrectly classified prior to March 1,
2007 and that the College therefore used the “wrong starting point” when it treated the rate of
$26.63 associated with such alleged incorrect classification as the “individual’s current hourly
rate.” It did not challenge the College’s assertion that the parties’ Letter of Understanding
governed when implementing this Award, and stated that it did not take the position that
Payband H in the new system was the starting point to be used in doing so.
Rather, the Union emphasized that the grievor’s position followed a three step wage
grid prior to March 2007, starting at the two year step. It asserted as well that the grievor was
clear throughout these proceedings that he viewed his position as incorrectly classified prior to
March 2007. Further, the Union referred to the moratorium on classification grievances from
September 22, 2005 to March 1, 2007 addressed in the Letter of Understanding.
In the Union’s submission, but for such moratorium on classification grievances, the
grievor could have and would have challenged the classification of his position prior to March
2007 while the three step wage grid was still in effect for Skilled Trades Workers. Had the
grievor been able to do so, the Union asserted that his position would have been reclassified to
Payband 11 under the former system, and given the three step grid in effect up to March 2007,
he would have been placed at the two year step of Payband 11 with an hourly rate of $27.13
effective September 1, 2006. The Union argued that the moratorium on classification
grievances was not intended to penalize employees, and that $27.13, the two year step of
Payband 11, and not $26.63, the four year step of Payband 10, was therefore the appropriate
starting point when implementing the Award.
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I note that late in the reconvened hearing, the Union advanced a different position,
suggesting that the starting point for the implementation of this Award could not be “a pre-
March 2007 payband that no longer existed,” and that in the context of what it characterized as
a “reclassification,” it was “not open to the College to reach back into an old system.”
I sought and obtained clarification from the Union as to the position it advanced here in
asserting that the College incorrectly implemented the Award in this matter. The Union did not
pursue the latter argument, but rather confirmed that its position was that the “wrong starting
point” was used by the College in implementing the Award and that the correct starting point
was the pre-March 2007 two year step of Payband 11.
Proceeding on that basis, the Union argued that the grievor should have been placed at
Payband I, the two year step, with an hourly rate of $29.36 effective March 1, 2007. The
underlying rationale articulated by the Union in support of such result was that but for the
moratorium on classification grievances, the grievor would have successfully grieved his
classification prior to March 2007, and given the three step wage grid which applied at the time,
he would have been classified at Payband 11, two year step, by the time the new job evaluation
system came into effect. In the Union’s submission, in implementing the Award in this matter,
the grievor should have been placed at the two year step of Payband I in the new job evaluation
system, so as to not penalize him for his inability to grieve while the three step grid was in
effect.
In the alternative, the Union suggested that using the two year step of the former
Payband 11 as the starting point, implementation of the Award should have resulted in the
grievor being placed at the six month step of Payband I. Given its position that $27.13 and not
$26.63 was the appropriate starting point, it noted that the six month rate at Payband I of
$27.67 was the next greater hourly rate.
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In response, the College maintained that it correctly implemented the Award in this
matter in accordance with the Letter of Understanding, using the four year step of Payband 10
as “the incumbent’s current hourly rate.” It argued that it is nothing more than speculative to
guess at the outcome of a pre-March 2007 hypothetical grievance in the context of a three-step
wage grid no longer in effect after March 2007.
Based on the argument before me, I am unable to conclude that the College failed to
correctly implement the Award in this matter. The Letter of Understanding referenced herein
provides in part that the College “will evaluate a position and determine the appropriate
payband” under the new job evaluation system which came into effect March 1, 2007 and that
“the level assigned to the position will be the first level encountered that contains an hourly rate
that is equal to or greater than the individual’s current hourly rate.” The College relied on the
Letter of Understanding in the implementation of the Award and treated the four year step of
the former Payband 10 as the “current hourly rate.” The Union did not ultimately challenge the
application of the parties’ Letter of Understanding here, but maintained that the two year step
of the former Payband 11 was the appropriate starting point for implementation.
There is no dispute that prior to the implementation of the current job evaluation
system, the grievor’s position was classified at former Payband 10, and he had by the time the
new system came into effect progressed to the four year step on the grid, with an hourly rate of
$26.63. There is no dispute that the grievor’s position prior to March 2007 followed a three step
wage grid, starting at the two year increment. Similarly, it is clear as reflected in the parties’
Letter of Understanding referenced herein that there was a moratorium on classification
grievances agreed to by the parties effective September 22, 2005 to March 1, 2007, and that it
was therefore not open to the grievor to grieve his classification during that period. Even
assuming, however, as the Union effectively asked me to do, that the grievor would have
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grieved his classification prior to March 1, 2007 but for the moratorium, I see no basis upon
which I can properly read the reference in the Letter of Understanding to “the individual’s
current hourly rate” to mean the rate that might have applied had an earlier hypothetical
grievance been filed and pursued. I am not convinced on the argument before me that the
applicable “current hourly rate” as contemplated by the Letter of Understanding was anything
but the grievor’s actual hourly rate of $26.63 at the time. As such, the start rate of the new
Payband I, $26.86, was in fact “the first level encountered that contains an hourly rate that is
equal to or greater than” his “current hourly rate” of $26.63.
I have considered as well that the grievor’s pre-March 2007 classification followed a
three step wage grid commencing at the two year step. Appendix E(i), entitled
“Classification/Payband Matrix (effective until March 1, 2007)” provides for three wage rate
steps for Skilled Trades Workers. Article 7.3.1 of the collective agreement provides in part that
“effective until March 1, 2007. . . employees in classifications with three (3) steps are paid at
the two (2) year rate on hire into the classification. . . .” In the context of such language, I
cannot accept that the fact that there was an agreed upon moratorium on classification
grievances up to March 2007 in itself permits the conclusion that the grievor should have been
placed on the March 2007 grid at the year two step of Payband I so as to replicate such pre-
March 2007 three step grid.
Having considered the argument before me in its entirety therefore, I am not satisfied
that the College’s implementation of the Award in this matter was incorrect and in violation of
the collective agreement.
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I continue to retain jurisdiction in this matter to further assist the parties with the
implementation of the Award should this prove necessary.
DATED at TORONTO this 15th day of March, 2013.
"M. Tims"
________________________________
Mary Lou Tims, Arbitrator