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HomeMy WebLinkAbout1989-1439.Barber & Sinclair.90-06-12· i,' :.:~" i.'~ ONTARIO EMRL 0 YES DE LA COURONNE "~. : ~ CROWN EMPLOYEE$ DE L 'ONTARtO GRIE~/ANCE C,OMMISSION DE SE'I'I'LEMENT REGLEMENT BOARD' DES'GRIEFS ~ 180, RUE ~ND~ ~EST, BUREAU ~, T~ (~T~). ~G 1Z~ FAC~IMILE/TE~C~E 1439/89 IN ~E ~TTER OF ~ ~I~TION Under Before THE GRImaCE SETTLE~ BO~ BE~EN ~ - OPSEU (Barbe~ Grievors The~Crown in Right o[ Ontario (~nis2ry of Correctional' Services) BEFORE: ~ P. KnopE Vi ce-Chai rPe.rson F. Taylor. Hembe r R. Sco~2 ~embe r FOR THE M. 'Hart GRIEVOR= -.-rCounset- ~ Cavalluzzo, Hayes & Lennon B~rristers & Soticitor~ FOR YBE M. Galway EMPLOYER: Staff Relations Officer Ministry of Correctional Services HEARING: March i9, 1990 ', DECISION The Union has Drought this gr£evanc~, On behal~ of the Grievors, Correctional Officers a: =he Cam2 Dufferin in LyZe, On~ar~o. T~e O~ievance i~volves ~heir ra~es of pay in 1989. T~e gr~e~anc~ i~seif refers to Article 6.6.1. The Union also wants to all~ge that the facts~ support a violation of Article 5.4.1. The Employer has raised a preizm~nary object,on that the inclusion of Article 5.4.1 in the arbitration would amount to an amendment or a fundamental change zn the grievance and it ought not to be allowed. Thus, the part,as agreed to present facts to us for purposes of the preliminary argument and to seek an inter[m ruling before proceeding further. For purposes of this motion, the agreed-upon facts are as follows. Mr. Barber was permanently classified with the Ministry on August 29, 1988. He was hired in the position of a CO 2 and initially "underfllled" as a CO 1 and was thus paid at that rate. However, on NovemDer 15, 1988 he was made an acting CO 3 and pal~ as such. He remained as an acting CO 3 until Jun~ 12, 1989 when he was made an acting OM 14, which is a management position outside the bargainzng Mr. Sinclair s situation was very similar. He was permanently classified on June 13, 2988. He was also hired as a CO 2 and underfllle~ as a CO 1. On August 1. igJ,9 he was made an acting CO 3. He remained in that position untll June 12, 1989 when he was made an acting OM 14. On July 3, 1989, Doth Grievors were returned to the responszb~lities of a CO 2 and were paid as CO 3~s. Between July 3 and August 17, DOth the Grievors were paid at a CO 3 level. Their paycheques loc August 17 indicateJ they were paid as a CO 3 and also paid a d[fferenc[al, between the CO 3 level and the OM 14 level on a retroactive Oasis for the period they had acted as an_OM 14,~ being~June t2 'to July 3, 1989.' Their AuQust 31st. Paychegue paid them bo,th, at the regular CO 3 level, with no deductions. Their Sepia. tuber 14 paycheque reflected a reduction from the CO .3 to CO 2 level · and deductions ~for the.differential for four w~,eks from the CO 3 to CO 2 level. '-In the end, they were;deducted all of what the Ministry considered:to be overpayments for the period between July 3 and September 1~[, On or .About August 17 or i3, Doth Grievors went spoke to Joanna Broadfoot.. the Offlce..~Manager at. Camp Dufferln, to ask aoout deductions on paycheques_..- Ar_ that point, they were told· that-the.:de~ductions would be made and -that. ·adjustments would con. tinue .to'be made. T, he Grievors then went t6 their Local President, He~ took their concerns to management'andre first level-response ~o the grievance was is&ued. , It. iS clear from~tnat..corresp0nde, nce th·ac, the Issue of the deductions was ralsed_wlch_-management.-. 'For purposes.."Of the .p~elimlnary issues, it was agreed that-r_he ,~rst t~me. the Grievors ..thought there was a problem was when.they ·noticed cna de.ductioas on ..the ir paycheques. They had Dean told that~there were-other employees at Camp Duff'er.zn working at-.the CO 2 ieSel and_paid as CO 3 s and --'believed thai~ ~his was being done:as a result of the s~ttlemen~ between the parties, The Union characteElzes this case as an issue as to Whether the Grtevors ought to have been paid at 'the CO 3 1.3v.'-i for th~ period, of Msrch 3, .1989 to March'31.,, 1990. Further it is~saxd'to'be a' question of. whether, the MinzstrY".s decision to'~'put~ th~se people~in the CO 3 position an~ l~a~e them-~here longer than allowed Oy ArtiCle 6.6.1 and paying them as [f they were a CO 3 Is also a violation of Art~cle 5.4.1. The remedy requesteJ is payment to the Grle~ors as CO 3 s from July 30 1959 to March 31, 1990o The following facts also emerged as not suspect to d~spute, When the Union referred the grievance to the Grievance Settlament Board to request a hearing, the Union characterized the case as one involvin9 "joo posting" Further, at the pre hea~in9 of th~s matter the Union raised its rellance on Article 5 for the first t~me %o t~e Employer, There Is some dispute as to w~ether Article 5.4 or 5.3 was mentioned. That disp~t~ need not De resolved because there is no dlsput~ that the first tl~e ~hat t~is was raised was at the pre hearing level. Upon the mention of Article 5 the Employer objected on ~he basis that ~h~ introduction of such a concept would fundamentally change the nature of the ~r~e';ance,. it is not con~es~ed that Article 5 had not been ralsed with the Employer p~io$ to those dlscussions, The Employer obj~uts_- to reliance on Areicle_ 5.4.1 arguing that thls wou~d amount to a suDs'tantial change in t~e Qr~e';ance. The G~ievance itself rofers only to Article 6.6.1 and it was said that the remed] sought in the Grievance is not consls~ent with Article 5.4.1 although the remedy requested :oday would be. The Board was remindeJ that the corr.~spondence filed showed that the Zmployer was respondlnQ throughout the 9$~evance procedures to Article 6.6.1, The Employor argues that ~he Unlon s letter ~o the Board refer~ this case 5o a hear~aQ characterizes the case as a job postln~ anJ that chis to° ~s consistent w~th Article 5.6 and no% Article 5.4. Th~s was said ~o conf~rm management s expectation that ~be ~e~amce concerned Art~cl~ 6.6. The f~rst ln~cation the Smployer, had of the Un[on s "chanGa of position" would hav~ been on March 12 when the Union's lawyer advised the Ministry of t~e Un~on's intention to focus the hearing on Article 5.4. It was said tha~ all this amounted to "an expansion of the nature of the 9r,evance after the gr~euance procedure was exhausted." Ic was satd thac the grtevance procedures did not reelect, the substance of the 9rievance that cha Un,on now w~shed to advance ' Ic was sa~d that. cne~e were fundamental differences be~wa~n A~tzCle 6.6 and A~zcl~ 5.4. the Smplo~er relied upon ~e'cas~s of ~R~99~Rg..~gd M~nistry: .--__°~ Correctional___.._ .. Service, Board' File 771/88 (Knopf) dated.January 23, 1989 and Gwln, Board'File 27/83 ~(Draper) August 5. i98].~ ~ In response, ~he.Union argues that the Subs=ta'nce of the grievance as presented to management has a'lways Dean perfectly clear. Ic was said that manag~men~ was always aware tha~ the G~ievors were compla~ning that they had not been pal~ properly ~d Cha~ chis was .spelled out i'n.-the grievance, d~cumenc. Ic was sa~d .the% whether.~c was fram~ as a u:olacion Sf Ar't.~cl..e' 3.6 'or Arcicl~ 5.'4 should not matter because management:has-Dean perfectly weii aware of what the Grlevors were '"'b~se~ abo~[." Ic was said that the Grievors should not-.De d.~n[~d, the right corprocaed ~o a grievance-woUld not nave made any d%fference .co m~nag~menc nor would managemen,c ~ave acted d~fferencly mecaus~ e~eryone kn~w what' che'Grievors wanted all-alon~. , We wer~ warned against the. danger-of apply,ing overly legalistic or technical requ [remen ts on' ~r'ievo~s chat wou~d prohtbit ch~ processing of cl'a/ms. Rel[agce ~as placed on the cases o[ ~%~%~o~9~3 Ltd. and interna'tton&l BrOtherhood of Electr. lcal Workers, Local 2343 (1984}, 15 L.A.C. (Sd) 7~ (Rayne.r) and Fournier a~_~!q~.~A[Z_9f Hea%.~, Board File 86/76 [Be'a%ty) May 6, 1977 Board File 12~)/87 (Samuels) July 4, 1988. The Decision All the case law czted' Dy Doth parties stand for the samTM. bas.lc propositions. The purpose of the gr.ieVance procedur~ is to allow the parties to inform each other of their posit~ons and to lead co meaningful discussions.of the issues. The grit-vance procedures cannot work until the substanc-~ of ~he lssue is known to both sides. This does not mesh o~ require that a Union must be able to p~e~isely define tbs exact nature of a grievance ~n the grievance form and be limited to the{, Imposing the technical requirements of pleadings upon ~he grievance procedure Zs in~ppropria~ and Is contrary ~o common s,~nse and industrial relations o~)ecc~vas. The comments Zn ~~bg~{ L~, ~gfa, by Cha~rman Raynec arc still applicable. The whol3 p~ocess of g£ievanre arbitration, and grievance p£oceduru, is designed to permit the parties at the earlier stages 'to resolv_ dispute between themselves. Hence collect[ve agreements invariably contain 'grievance proce~ur~ provisions so chat grievances a~e funnelled ~o an arbitration board only after the par~ies ha~e had a chance to resolve, the ma~ter.. It ~is our view that' t~e comments of Professor Laskin and the decision in the ~_Biouin Dr[~9~[ case attempt to acco~odace Doth values. If the issue raised at tee arbitraclo~ heating is in fact part of the or[~[na% q~[e~ance~ a board of arDltratlon should hoc deny itself jurisdiction based on a technical objection as to th~ scope of the original gFlevaace. To do so would be to deny the value of flexiDllity and would be to compel the pa~ties draft tnelr gclevances with a nicety of pleadings. On the ocher hand, if the issue raise~ by on9 of th~ parties is not inh.~enc in the original grievance, for the board to permit the party raise that issue as .,.Dart of the original Grievance wouiO D~ co ~eny the parties the DeDe~l~ grievance pr0c~dure in an at~emp~ to resolve the issue between themselves. In fact~ permi~ one party to substitute a new 9~zevance ~or the or~gznai grievance. We must now apply these principles to the case a~ hand. In our v~ew, the facu that Article 6,6 alone has been specified in the grievance [s of very little slgnlflcance. The Unlon oecd not spec try cna Article alleged to have been violated under this collective agreement. But when lc does so, it iS clearly ~nte'nded to what the complaint is. However, if on further ce. flectlon, t[%e Un,on realizes chat the incorrect Arc,cie .has been spec~f ~ed or Grievance procedure ls flexlDl'e enough to altow fo~ th~s Thus: ~f at the'f~i~s~t and second sta~es 'the Union makes Known to the .Employer..that the.me, its of tne~brievance involve mo~e than ls specified 'in"the g~levance f~rm, this allows the Employer th~ opportunity to address those arguments and' act accord fnQly. discussions that then Decome imPOrtant and the Employer has an opportunity of addressing the whole of the Union s case and argument in the~gr~evance process, then the technical beyond any specie,cs mentione.d true substance of the 'compl~ain't .is not side Known ~o the Employer at the Grievance meetings. ~rDftration Doards are cons~stenf, in refusin arDlcration. To do oth~rw"~se'would,be ~o destroy the purpose of the g~z~vance procedure. In the fac'ts at bani, we must-conclude tha:t'.:there are fundamenta.[ differences"D~twee~ the substance of a .c-l.arm unde~- Article ~.6'.! and Article'5..4.1'. The-~wo Articles deserve to ~e quoted h~re . ARTICLE 6.6.1 Where an. ~mployee a position, Article 4 '(Posting and Filling of Vacancles or N~'w Positions) shall 'not' apply' excep the term of a temporary assignment is Greater than six (6) months duration, and [~J). the specific-dates of ~he tess a~e establishe~ at least ~wo (2)"months in advance of the contmencement of temporary assignment. ARTICLE 5 PAY ADMINISTRATION 5.4,1 Where, because of.the abolition of a position an employee is assigned (a) from one position another positton in the same ministry, nE (b) from a position in one ministry to a position in another ministry, and the position to which he is assigned is in a class w~h lower maximum salary than the maximum salary for 'the class of the position fk-om which he ~was assigned, he shall coa~lnue to De ent%tled to salary progression Dased on merit to the ~aximum salary of the higher classification including any re~lsion of ~he maximum salary of the higher cl.asslflCatibn '~at takes effect during the salary cycle in which the assignment ta~es place. A grievance under Article 6.6.1 would require an inquiry into whether the assignments were for 9~ea~er than six months, whether the date of termination was estaDlished two months in advance of the commencement o~ the assignments a~d, ~ whether th~ assl~nments were posted and filled in accorJance w~th Article 4. Th~s ~s fundamentally d~ffere~t than inqulry that would be held into a violation of A~ticle 5.~.1 wh~r~ we would look to see i~ the 9rlevors hel~ th~ posi~ons that were abollshe~, whether %ne result of that abolition was that the 9rievors were assigned to a posltzon w~th a lower maximum salary ra~e and, If so, whether the sala~es were different: wa have to conclude tha~ the nature of the employer s response to a cietm under A~ttcie 6.6.1 o~ 5,4 woulfl also be qatte different. There is no responsibility upon an employer %o determine whe~® an alleged violation of a collective 'a~r6ement properly lies. To simply say that this is fundamental',y a claim about a race of pay does no~ an employer in determinln9 on what Das~s. the un,on relies. Once th~ union s.oeclf~es the nature of its dispute, the employer is entitled ~o. ~ely upon that and defend accordingly. In this case, t~e Employer was ent~%led to rely u~on %he factual a~ 'legal a~Qumen~s available ~o was %old %ha% lc'was ~aclng a claim based on Article~6.6.1. I~ we were to allow the Ualos to procee~'o~ Article'5.4.1 now wa would ~be denying' ooth parties t~e.opportunltles tha~ would ha~;e been available ~o them under the 9rie'4ance proc~.~ur~ address the ';er~ ~i~eren~ issues that such a claim would Euen i~ we were l.to accept that t~e issue Of Article 5 4.1 was r'aised at the pre hearing level, that does not assis.t the Union, T~e issues must be discussed and ralse~ at the grievanc~ procedures which were created in the collect']v~ agreement. That allows those who have direct lsvolvement iD a case to deal with it at its initial' stages. However~ onc~ ~he ~mpo~tance of Article 5 became knowD to the Employer. at the ~e hearing stage, the ~mploye~ cou'!d well have taken tnau opportunity to explore the merits of ~hat argument with the Unmon. W~ have no information as to whsther of not thLs was done. It is always preferable [rom an ~ndustrlal ~elations point' of ~lew to respond tO grievances on their merl'ts so .employe~s have a feeling that tne!~ true 9~xevaaces are ~eard. This benefits the' employer and %ne wor~ force. Howe'~er, hav~n9 only raxsed the issue Article 5 at the pr~-hs~r~ng st~Ge an~ haviDQ bypassed the oppocuunicfes o( fhe grleuance sLeps., it is tOO late for the Unio~ to attempt to do so now w~thout th~ consent o~ Emp 1 oye [ · For all these 'reasons, we have concluded that the U~lOa ought not to be allowed %o r~ly on Article. 5.4.1 in prOcessing .of r..h.ts case. We undarscand that the Employer has the ~ntenclon of raising another preliminary object]on on t~e basis of timeliness and that may ~e raxsed when. the h~arin9 proce,~ds on its merits. We also understand that ~he part~es ace ag~aed t~a~ we are s~ized with this case. Th.=refore, the mat. cer is adjourned to ~ date to be sat Df the' Registrar, in con~g!tat~on with the parties. DATED at. ~oron~o: Ontario ~h~s 12th day of June 1990.