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HomeMy WebLinkAbout1991-1644.Baird et al.92-09-11 ONTARIO EMPLOYES DE LA COURONNf CROWN £MPL 0 YEES DE L'ON'rARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2lO0, TORONTO, ©NTAR.~O. t,.4SC~ 525/92, 526/92, 527/92 528/92, 529/92, 533/92, 553/92, 619/92, 744/92, 745/92, 746/92, 911/92, 912/92, 980/92, 1063/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Baird et al) Grievors - and - The CrOwn in Right of Ontario (Ministry of the Solicitor General) Empl.oyer BEFORE: B.A. Kirkwood Vice-Chairperson ' H. O'Regan Member A. Merritt Member FOR THE C. Dassios GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE C. Slater EMPLOYER Senior Counsel Human Resources Secretariat Legal Services Branch Management Board of Cabinet HEARING: April 6, 1992 Page 2 INTERIM DECISION Prior to 1990, there were three levels in the class series of Security Officers. Between' 1987 and 1989, 126 grievors filed grievances claiming that they were improperly classified. After the grievances were lodged, the employer re-examined its class standards for security officers. As a result of its review, the employer added a fourth level of security officer to the existing levels. We are unaware if the employer changed the content of the existing levels. The parties met in compliance with Article 5.8.1 which states: When a new classification is to be created or an existing classification is to be revised, at the request of either the parties shall meet within thirty (30) days to negotiate the salary range for the new or revised classification, provided that should no agreement be reached between the parties, then the Employer will set the salary range for the new or revised classification subject to the right of the parties to have the rate determined by Arbitration. The employer represented by Management Board of Cabinet and the Ontario Public Service Employees Union entered into an agreement on January 29, 1991, effective January 1, 1990. The agreement states: Without prejudice and without precedent, the parties hereto agreed to all matters in dispute and have agreed to recommend unanimously to their principals the following terms as full and final settlement in respect of the salary negotiations in accordance with article 5.8 of the Collective Agreement for the Security Officer series in the General Operational Services category: Page 3 1. SALARIES The salary rates effective January 1, 1990 were as follows: Security Officer 1 13.32 13.58 Security Officer 2 13.58 14.19 Security Officer 3 14.14 14.70 Security Officer 4 14.95 15.24 The first step of the Security Officer 2 level will be increased by .25, establishing a new rate of 13.83. The salaries effective January 1, 1990 will be increased by 6.75%. The new hourly rates are as follows: Security .Officer 1 14.22 14.50 Security Officer 2 14.76 15.15 Security Officer 3 15.39 15.69 Security Officer 4 15.96 1'6.27 2. iMPLEMENTATION Subject to the approval of the Civil Service Commission the effective date of the establishment of the new class (Security Officer 4) and for the new salary rates for the series will be January 1, 1990. Individual employees will remain at the same step of the new salary range as they had attained in the former salary range as of January 1, 1990. 3.OUTSTANDING GRIEVANCES Retroactivity and other issues related to the outstanding grievances which gave rise to this matter shall be discussed by the Union with the respective Ministries within 15 days of notice of ratification of this agreement by the Union to the Employer and the Ministries involved. Failing resolution of these matters the Union may refer them to the Grievance Settlement Board in ? Page 4 accordance with the Memoranda of Settlement for the relevant classification grievances. Signed by the parties hereto on the 29th day of January, 1991 For the Management Board For the On%ario Public of Cabinet Service Employees Union We were advised by counsel that in April 1991, the 126 grievors were reclassified and were paid retroactively at the new rates from July 30, 1987. The Union is now representing 21 security officers who had not filed grievances with the 126. These grievances include that of Mr. McLeod, whose grievance wMose grievance had not been filed with the Board by the time of this hearing. These grievors were reclassifiea, and received the new rates of pay from January 1, 1990. They filed grievances in July, August and September 1991, claiming retroactive wages from July 30, 1987, or if they were hired after July 30, 1987, from their date of hire to January 1, 1990. The grievors are claiming retroactive wages at the same rates as that received by the group of 126 grievors, on the basis that they were performing the same work as others. At the outset of the hearing, the employer's counsel argued that this Board had no jurisdiction to hear the matter, as the agreement made between the employer and the union on January 29, 1991, barred any claim for retroactivity, other than by the 126 grievors with outstanding grievances. Employer's counsel argued that the agreement was a full and final settlement on the classification and salary rates for all security officers, excluding the 126 grievors. Employer's counsel argued that Page 5 the 21 grievors before us, have no right to bring forward the issue of retroactivity when the issue of re~roactivity has been settled by its own bargaining agent. Union's counsel argued that the settlement did not purport to settle the issues placed before this Board. In its view, the agreement settled only wage rates for the various levels in the class standard, but did not settle classification of employees. Union's counsel submitted that the grievors before us have a right to be properly classified. Union's counsel argued that although the grievors were properly classified, these grievances were classification grievances, but the only issue was retroactivity of the wages. The narrow issue before us is to determine whether the 21 grievors before us, are precluded by the agreement entered into by Management Board of Cabinet on behalf of the employer, and the grievors' union from making a claim for retroactive wages prior to January 1, 1990. Assume that these grievances are classification grievances, even though none of the grievors claimed that they were improperly classified and the union stated that the grievors were properly classified. We find that the employer and the union agreed to the salary rates that were to be applied to each level of security officer, and agreed to their effective date. of January 1, 1990, in the agreement dated January 31, 1991. Although the preamble refers to "all matters in dispute", it clarified the issues'in dispute by specifically referring to "salary negotiations pursuant to article 5.8.1." Page 6 The agreement did not settle the classification of individual employees, it merely established the wage rates for each level. The parties recognized that there were issues arising from the outstanding grievances, including that of retroactivity. The parties isolaSed those grievances and their issues, including retroactivity. The parties set out the procedure they agreed would be followed for the 126 grievances in the third section of the agreement. When the third section of the agreement is considered in the context of the whole agreement, it allows for an independent and separate resolution of the issues pertaining to the outstanding grievances. Retroactivity was only contemplated with respect to these outstanding grievances. If we were to interpret the agreement to mean that these wage rates could be applied prior to January 1, 1990 to any other security officer, we would be contradicting the parties' agreed implementation date. The union argued that although it was a party to the agreement the agreement did not cover classification matters and the grievances before us. We agree with the union's position, that notwithstanding the broad rights given to the union in section 19 of Crown Employees' Collective Bargaining Act, the employee has a right to grieve his or her improper classification under section 18{2) of Crown Employees' Collective Bargaining Act. The courts have been vigilant in protecting the employee's rights in classification matters. As seen in the Berry decision Ontario Public Service Employees Union and Carol Berry, et al and The Crown In Right of Ontario (Ministry of Community and Page 7 Social Services) G.S.B. % 607, 608, Ontario Division Court (Reid) (March 13, 198'6) the right to grieve cannot be restricted by any agreement, even by the collective agreement. The right of the employee to grieve under section 18(2) has been limited to the right to process the grievance, but not the right to carry the grievance through arbitration (E. Blake' et al and Amalgamated Transit Union and The Crown in Right of Ontario (Toronto Area Transit Operating Authority) G.S.B. 1277/88 etc. (O.B.Shime).) This limitation is not a problem in the case before us, as the union supported these grievors in' processing their claims to arbitration. we also agree with the union that we have the jurisdiction to reclassify an employee retroactively. The Divisional Court in Ontario Public Service Employees' Union and The Province of Ontario and Grievance Settlement Board, Ontario Divisional Court, Osler (November 24, 1983) cited as O.P.S.E.U. v. The Queen (1983) 44 O.R. (2d) 5I; I O.A.C. 58 considered the right of an employee to claim reclassification retroactively beyond the period.agreed to between the employer and the union. In that case, .there were problems with the classification of approximately 75 employees. By October 1, 1980, approximately 12 grievances were filed. These grievances were settled and retroactive pay was given to varying dates. The employer then reclassified the remaining employees as of October 1, 1980, the date of the filing of the other grievances, but gave retroactive salary increases from July '!, 1980. Upon receiving notice of the reclassification, the grievor claimed that he had been improperly classified prior to the commencement date and sought reclassification and further retroactive monies. The Grievance Settlement Board held that it did not have jurisdiction to deal with retroactive awards Page 8 as the classification had been changed before the grievance was filed. The Divisional Court did not agree and held that the time which the classification was to begin was a part of the claim for reclassification. Similarly, although the 21 grievors were reclassified as of January 1, 1990, the grievors are not precluded by the agreement from bringing forward a claim for proper classification prior to the date that the employer reclassified them. We have jurisdiction to determine the classification of the grievors retroactively, and as a consequence of a determination of the classification issue, the right to retroactive pay. However, the individual employee must be bound by the agreement that the union, as his or her representative, and as the representative of the membership, has negot'iated on its behalf. The agreement between the employer and the union of January 29, 1991 does not determine the classification of these grievors, but it does set the rates that are to be applied from January 1, 1990. We have no jurisdiction to set wage rates as in an interest dispute, but must apply tke agreement reached by the parties. It is the employer and the union who are responsible for negotiating the collective agreement. The grievors are only entitled to the wages that were effective at the time that they were performing the work. The parties in this case agreed to the wage rates and the implementation date for these wages in the agreement of January 29, 1991. The union cannot on the one hand negotiate salary ranges and the effective date for its members and then after the agreement is settled, file further grievances and successfully obtain retroactive pay on dates earlier than the implementation date agreed to by the parties. The integrity of the agreement would not be Page 9 maintained, and there would be an ever ending arosion of the agreement between the parties. In summary, if the agreement is considered in the context' of collective bargaining, the statute and the jurisprudence of the Grievance Settlement Board, the employer instituted a new level of security officer, the parties negotiated and agreed to the implementation date of the new level, and to the salary ranges for aL1 the levels and the implementation date. Any outstanding issue of retroactivity of wages was only within the .context of the outstanding grievances, as set out in the third section. We cannot award wages in contradiction to the agreement by the parties. Therefore we cannot award the rates negotiated and agreed to by the parties that were to be in effect on January 1, 1990, retroactively. Our jurisdiction is limited to determining classification of employees and applying the rates that are in effect for the classification, unless there is a Berry order and the wages are resolved in the normal course. We are unclear if the union is claiming anything other than the rates that were given to the 126 grievors. As this is a preliminary matter, we will resume the hearing on September 25, 1992, as scheduled, if the union advises that Registrar that there are further issues that arise from the Page 10 I grievances that have not been determined by this interim decision. Dated at Toronto, this$~ day of September, 1992. B. A. Kirkwood, Vice-chair H. ~. Regan, %-mplo~,~e Member A. Merritt, Employer Member