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HomeMy WebLinkAbout1989-0023.Cummings.91-04-08f"~ ';' ':" ..... ONTA R~O EMPL 0 Y~S DE LA COURONNE '"J:' ~ '" CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE _. SETTLEMENT REGLEMENT BOARD DES GRIEFS _ 1~0 DUNDAS, S,TREE"F WE5T, SUITE2100, TORC~NTO, ONTAR.ro. M5G 'lZ8 TELEPHONE/TELEPHO,",IE: (,~61 325-r35~ '~80, RUE DUNDAS OUEST, BUREAU 2100, TORONTO f. DNTAR/O). M5G tZ8 FAC$1MiLE/T~L~COP~E ; {4161 $26- 1396 23/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (C~mmings) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: A. Barrett Vice-Chairperson J. Carruthers Member M. O'Toole Member FOR THE G. Richards GRIEVOR ~ Senior Grievacne officer Ontario Public Service Employees Union ~OR THE J. Benedict EMPLOYER Manager Staff Relations & Compensation Human Resources Management Ministry of Correctional Services HE~RING: October 3,. 1990 - 1 - This classification grievance was filed on January 10, 1989, and settled by a Memorandum of Settlement, dated July 14, 1989. The union alleges that the settlement was not properly implemented; asks us to find that it is a nullity; and to hear the case on its merits. The operative part of the Memorandum oK Settlement states: 1. "The Ministry agrees to reclassify Mr. Cummings to a Trade Instructor 3 effective January 1, 1988, and pay him the applicable wages from that date. 2. The union and Mr. Cummings agree to withdraw the noted grievance." In implementing this Memorandum of Settlement the employer placed Mr. Cummings at the start level pay scale for a Trade Instructor 3 as of January 1, 1988, then progressed him annually up the next two wage levels, so he is now at maximum. It is common practice for employees entering a new classification to be'-paid at the start rate and progress annually to the maximum rate. These are called merit increases, but in fact a~e automatically granted unless there is substandard performance. The union says that the grievor was already at the maximum rate for Trade Instructor 2 when he was reclassified, and he should have been placed at the maximum level on the Trade Instructor 3 salary scale. The union wants to call evidence to show that Mr. Cummings has been doing basically the same job since his hire in 1985, that is: upholstery instructor, and there was no change in his duties as of January, 1988 that would make it appropriate for him to be paid at the entry level rate for the new classification. We ruled at the hearing that we would not hear evidence of Mr. Cummings' duties pre-January, 1988. The parties agreed in their Memorandum of Settlement that January 1, 1988, was the appropriate date for the re-classification, although the grievance had claimed re-classification retroactive to Mr. Cummings' appointment to the position in 1985. We note that the remedy went back to one' year before the filing,of the grievance, which is an unusual amount of retroactivity: thus w~ conclude that the parties agreed that the.grievor was properly classified until January 1, 1988, and improperly classified thereafter. We will not go behind that agreement. The main difference in the class definitions of. Trade Instructor 2 and Trade Instructor 3 are that the TI 3's teach more complex trades than the TI 2's. The old'class definition for TI 2 specifically mentioned upholstering as a less complex trade. By December, 1987, in a new Position specification, upholstery was referred to as a technically complex trade for the first time. We suspect this may be why the January 1, 1988 retroactivity date was agreed upon, although we heard no evidence on that issue, and in - 3 - fact declined to hear evidence on 'the evolution of the upholstery instructors' job. The union relies upon Sturch (G.S.B. 611/86), a case in which a different panel of this board found that on both the class standard and usage tests, the difference between the Court Reporter 1 classification and the Court Reporter 2 classification "had a distinction without a difference." In other words, they were one and the same job, and had been for quite some time. When the employer implemented that decision it' paid the grievors at the entry level rate for Court Reporter 2, although the union argued that the grievors should be placed at the salary step which they had already achieved in the Court Reporter 1 classification. The board upheld the union's position on the basis that the grievors were not assuming new and more complex tasks, at which it may well take time to become proficient and an entry level rate would be justified. They were performing the same tasks because the board had specifically found that the Court Reporter 1 duties equalled the Court Reporter 2 duties. The union says that Mr. Cummings case is on all fours with the Sturch case. The grievor was always an upholstery instructor and remains one today. Therefore, the union asks us to infer that a Trade Instructor 2 who teaches upholstery should really have been a Trade Instructor 3 all along. We will not draw that inference in the face of th'e agreement in the Memorandum of Settlement that the proper re-classification date was January 1, 1988. The inference we draw from that agreement is that it was around that time when the upholstery trade had developed into a more complex trade than it used to be. There is nothing in the collective agreement which specifies how people are to be paid when entering a classification that is neither a promotion or a demotion for the employee. Therefore, says the employer, we have no jurisdiction to interfere with the exclusive management right pursuant to section 18 of the Crown Employees Collective Bar~ainin~ Act "to determine the merit system." What the employer'did in this case, in the absence of any direction from the collective agreement or from the salary administration policy,, was to place the grievor on the salary grid by analogy to article 5.1.2 of the collective agreement which deals with pay rates in promotion cases. That clause requires that the employee be moved to the closest higher rate on the new pay scale provided the increase is at least 34. In fact, the increase from the TI 2 maximum rate to the TI 3 minimum rate was 15~, and that is what the grievor was paid. In result, we find that what the employer did here was to exercise its management right to administer the salary - 5 - provisions of the collective agreement and the merit increase provisions in a manner that was fair and reasonable in the circumstances, and not in contravention of any provision of the collective agreement. This is not a Sturch-like case where the two class definitions have "a distinction without a difference." The difference is one of complexity, and the parties have agreed in their Memorandum of Settlement on an appropriate date to recognize the increased complexity, which evolved over the years. Accordingly, the Memorandum of Settlement stands, along with a direction by this board that it has been properly implemented. DATED at Toronto, this 8t~ .... day of April. ., 1991. A. BARRETT, rlce-Chairb'erson "I dissent" (dissent attached) J. CARRUTHERS, Member IN THE MATTER OF AN ARBITRATION BETWEEN: · · OPSEU - and - THE CROWN IN RIGHT OF ONTARIO (Ministry of Correctional Services) REGARDING THE GRIEVANCE OF JOHN CDq4MINGS GSB # ~23/89 DISSENT I have studied the decision of the chairman and find that I must dissent. The issue in this case is whether or not the employer complied with the terms of a 'memorandum of settlement to a classification grievance in which the employer promised "to reclassify Mr. Cummings to a Trade Instructor 3 effective January 1, 1988, and pay him the applicable wages from that date." It is unfortunate that the union also requested that the settlement be declared a'-'nullity, but it is not my impression that the union was seeking to litigate the merits of the grievance. If it was, I would ag.ree with the chair that it is not entitled to raise an issue on which the parties had reached a settlement. The real issue in this case is one of salary administration. It arises pursuant to the grievor's reclassification and presumably 2 could have been made the subject of a second grievance, however it is not unreasonable that the union sought to treat it as part of the original dispute. The Chairman apparently accepts the argument of the employer that the matter falls within management's exclusive rights and denies the Union claim that the settlement was not properly implemented. With respect, I submit that the Board has wrongly declined its jurisdiction under S. 19 (1) CECBA to give the parties a full opportunity to present their evidence and to make their submissions and to decide the matter. I draw the Board's attention to the decision of another panel in Campbell and MGS (Samuels, 31 0ctober/90) GSB 1257/88 released following our hearing in this matter. In Campbell, the Board notes that the grievors "claimed classification as Services Supervisor 2. In an award issued in late 1989, we upheld the grievances and ordered that the grievors be reclassified as Services Supervisor 2 as of November 1, 1987, and that they should be put in the financial position they would have been in had they been so classified since November 1, 1987. ... The Ministry based its calculation on the salary progression used in cases of promotion (as described in Article 5.1.1 and 5.1.2). ... The issue before us is where in the salary grid for Services Supervisor 2 would the grievors be best fitted as of November 1, 1987." · -. The Board noted the findings in its earlier decision concerning the merits of the case that the grievor's job had not changed after the positions were created in 1986. It held: (1) The Sturch award was based on unusual circumstances and hence not applicable. (2) The issue is within their jurisdiction. (3) The rules concerning salarF progression do not apply. (4) Once correctly classified, they ought to be paid at the level they would have been paid had they been correctly classified from the outset. The issues in Campbell and the instant case are identical with the exception that in. Campbell, the grievor's proper classification was determined by the Board whereas here, it was agreed to by the parties. In Campbell, the Board gave general directions quoted above and reserved its jurisdiction to deal with disputes arising out of the order. In the instant case, the parties agreed to reclassify effective January 1, 1988, and pay the grievor the "applicable wages from that date." 4 I believe that the settlement of the parties is not unlike the Board's original decision in Campbell in that it is tentative until all related matters of compensation arising from the classification grievance are finally resolved. It is clear from the language of the settlement that the parties reached agreement on the merits of the case, namely the proper classification for Mr. Cummings, without turning their minds to the particulars of compensation. We may assume'this was done in good faith and without any anticipation of a problem. Once the employer had calculated the grievor's entitlement, the difference between the parties become apparent and it was clear that the grievance had not been finally resolved. It is the duty of this Board to provide such resolution. In Bishop et al (Fisher, 25 January/91) GSB 1432/88, the Board held that the fact that a Board did not expressly reserve its jurisdiction in the first award is irrelevant as we are bound by such S.19 CECBA" to decide the matter." Since its first award in that case did not deal with issues of compensation which arose in efforts to implement, the Board asserted jurisdiction to resolve those issues in a further hearing. I respectfully submit that the agreement of the Union in this case should be viewed in much the same way as the comments of the board in Bishop. The agreement to pay "applicable wages"L is one that is susceptible to enforcement by this board. I can see that the determination of "applicable wages" is complicated by the absence of express language dealing With reclassification as distinct from promotion; however the Campbell decision is of some assistance when its states "once correctly classified they ought to be paid at the level they would have been paid had they been correctly classified from the outset" In my opinion these comments seem to reflect the appropriate application of general remedial principles which entitle a grievor to be made whole. · I agree with the Chairman's description of salary progression in the instant case that "It is common practice for employees entering a new classification to be paid at the starting rate and progress annually to the maximum rate. These are called merit increases~., but in fact are automatically granted unless there is substandard performance." In refusing to "go behind" the agreement to reclassify the grievor, the chairman prevented the union from calling evidence to show that the grievor had been doing the same job since 1985. Such evidence was necessary in this case because, unlike Campbell, 6 the Board did not have the benefit of prior evidence concerning ~he merits of the classification issue itself. A party should not be discouraged from resolving broad disputes over classification short of litigation because of evidentiary requirements in the event of a future dispute concerning the correct calculation of pay when implementing their agreement. If the union had been permitted to call evidence to show the unchanging nature of the grievor's job since 1985 in this case, and if that evidence was not successfully refuted by the employer, it follows that an application of the salary progression practices to the grievor would have entitled him to the maximum rate for the Trade Instructor 3 classification effective from the date of his reclassification January 1, t988' By this date, the grievor had been in the position for in excess of two years. The wage scales distributed to the Board show only three steps, and the employer's salary progression practices would have resulted in the grievor reaching the maximum after two years of satisfactory performance. The union was'~herefore prevented from calling evidence that was essential to its case. Why? The chairman notes that "the parties agreed in their Memorandum of Settlement that January 1, 1988, was the appropriate date for the reclassification, although the grievance had claimed reclassification retroactive to Mr. Cummings' appointment to the position in 1985. We note that the remedy went back to one year before the filing of the grievance, which is an unusual amount of retroactivity: thus, we conclude that the parties-.agreed that the grievor was properly classified until January 1, 1988, and improperly classified thereafter. We will not go behind that agreement. With respect, I strongly disagree for two reasons: (1) There was no evidence whatsoever about this or any other settlement, yet the chairman found that it provided for an unusual amount of retroactivity. Unusual in relation to what? (2) The Board~ concludes without evidence that the parties agreed that the grievor was properly classified until January 1, 1988, and improperly classified thereafter. Such a conclusion involves the very type of venturing "behind the agreement" which the Board subsequently eschews. The Board is entitled~to examine the significance of January 1, 1988, but overlooks the most obvious explanation, namely, the 20-day rule governing retroactivity which the Board established in OPSEU and Ministry of the Attorney General (Beatty, · October 21, 1976) GSB 71/76. The effect of that rule in this case would have been to limit Mr. Cummings to compensation from December 1988, 20 days before his grievance was filed on January 10, 1989. The parties agreed to an early effective date, January 1, 1988, but they did not even turn their minds to the calculation of the amounts owing from that date, or the factual questions concerning possible changes in the job which might be relevant to settling the date on 8 which the grievor's work assignment began to include "Technically complex" duties that would justify the Trade Instructor 3 Classification. Yet the determination of such a date is critical in resolving the grievor's entitlement. I therefore believe that the chair's decision to bar the evidence which the union proposed to,all and which was clearly relevant to enforcing the settlement, constituted an impermissible unfairness to the union, but if I am wrong, I believe that the Board's decision reveals a difference on which Mr. Cummings would be entitled to initiate a fresh grievance. The chair has indicated ~ opinion that the employer acted within its rights and in a reasonable manner. This suggests that the employer has some discretion on where to place an employee on a salary scale in the event of reclassification; a view which is inconsistent with the reasoning in Campbell. The Board has spoken of the importance of consistency in many of its decisions, and I believe the reasoning used would be applicable to the present case. For all these reasons, I would have admitted the evidence which the Union sought to introduce. If that evidence had confirmed the continuing complex nature of the grievor's job since 1985 as claimed in the grievance itself, and in the absence of any detrimental performance appraisals that might have warranted the denial of a merit increase on his anniversary dates thereafter, I 9 would have found the grievor entitled to the maximum rate for TI 3 as of January 1, 1988, namely $20.16 per hour. The grievor would, of course, also be entitled to compensation for the subsequently negotiated adjustments effective January 1, 1989, April 1, 1989, July 1, 1989, October 1, i989, and January 1, 1990, together with interest calculated in accordance with the board usual practice. Ail of which is respectfully submitted. J~~~SCARRUTHERS ' · Union Nominee March 21~ 1991 # 23/89 IN THE MATTER OF AN ARBITRATION BETWEEN: OPSEU (CUMMINGS) - and - THE CROWN IN RIGHT OF ONTARIO {Ministry of Correctional Services) ADDENDUM OF T~E V/CE-C~AT~PERSON I have had an opportunity of reading the dissent of Mr. Carruthers dated March 21, 1991, and the cases referred to therein. I take this unusual step of issuing an addendum to the majority decision simply to note that the Campbell and Bishop cases · referred to by Mr. Carruthers had not been decided at the tine of our hearing on October 3, 1990 and so, of course, were not referred to or argued by counsel in this case. Accordingly, I will not comment on the merits of those cases except to note that ours is a "settlement" case: not a classification case which was heard on its merits. DATED at Toronto, this 3rd day of April, 1991.