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HomeMy WebLinkAbout1992-3164.Knaap.00-11-08 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L 'ONTARW . . GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE (416) 326-1396 GSB #3164/92 OPSEU #93A387 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Emplovees Umon (Knaap) Grievor - and - The Crown III RIght of Ontano (Mimsm of the SOlICItor General and CorrecTIonal ServIces) Employer BEFORE N DIssanavake Vice ChaIr FOR THE Int Kelman, Counsel GRIEVOR Rvder, Wnght, BlaIr & Dovle Bamsters and SolIcItors FOR THE Andrea Kuprej anov EMPLOYER Staff RelatIOns Officer Mimsm of CorrecTIonal ServIces HEARING October 20 2000 2 Interim Award Ms Wendy Knaap filed the following grlevance dated November 17, 1992 which lS before the Board for determination "I grleve that I am being improperly paid as a CO I, increment I as per the collective agreement" The settlement desired lS "That retroactive to November 12, 1991, I be paid at the CO I increment 2 rate and effective August 25, 1992 I be paid at the CO I middle rate retroactive to August 25, 1992 " At the commencement of the hearing the employer objected to the arbitrability of this grlevance on two alternate grounds First, that the unlon has fundamentally changed the nature of the grlevance at arbitration Second, that the grlevance as framed at arbitration was In essence a classification grlevance For purposes of this interim award, the parties agreed upon the following partial statement of facts, 1 On November 13, 1990, Ms Wendy Knaap began her employment with the Ministry of Correctional Services at the Hamilton- Wentworth Detention Centre (HWDC) She was hired as an unclassified Correctional Officer (CO) and paid at the C01 level 1 classification 3 2 Ms Knaap subsequently competed for a full- time classified CO position at the HWDC and won the competition 3 On May 4, 1992, Ms Knaap was appointed to the classified staff on a training underfill basis, and continued to be paid at the C01 level 1 rate 4 On April 29, 1992, W B Thomas, Regional Personnel Administrator, sent an appointment letter to Ms Knaap In that letter, Ms Knaap was advised that 'reclassification to the CO2 may take effect November 25, 1992 subject to satisfactory serVlce and completion of staff training courses " (Exhibi t 1) 5 On November 17, 1992, Ms Knaap filed the grlevance that lS before the Grievance Settlement Board today (GSB 3164/92) 6 On December 18, 1992, Ms Knaap completed the required CO2 training 7 Ms Knaap's underfill status was removed retroactive to November 25, 1992 She was reclassified to the CO2 classification and paid at the CO2 level 1 rate on that date 8 In accordance with the GSB Award on Union Policy Grievance 2426/90 and 2723/91, and the Memorandum of Understand~ng signed between OPSEU and the Ministry of 4 Correctional Services dated September 22, 1995, the Ministry entered into a settlement with Ms Knaap on July 29, 1996 to resolve the outstanding pay merit lssue of her grlevance dated November 17, 1992 (Exhibi t 2, 3, and 4) 9 In compliance with the settlement entered into with Ms Knaap dated July 29, 1996, she was awarded a merit lncrease from C01 level 1 to C01 level 2 retroactive to March 18, 1992 Given that the CO2 level 1 pays at a lower rate than the C01 level 2, the Ministry also readjusted Ms Knaap's wage rate from a CO2 level 1 to a CO2 level 2 retroactive to November 25, 1992, the date of her underfill removal 10 On February 23, 2000, Ms Knaap's grlevance GSB 3164/92 was mediated at the Grievance Settlement Board before Vice-Chair Dissanayake The parties entered into a settlement In which they agreed to make a bona fide attempt to resolve the outstanding lssues (E XH I BIT 5) 11 On July 19, 2000, Irit Kelman, counsel for the unlon, sent a letter to Andrea Kuprejanov, counsel for the employer, which confirms that the Parties have been unable to successfully negotiate a settlement, outlines the union's and grievor's current position, and requests a number of documents (Exhibi t 6) 5 12 On August 14, 2000, Andrea Kuprejanov, counsel for the employer, sent a letter In response to Ms Kelman's correspondence of July 19, 2000, which outlines the employer's position and provides some of the documents requested by the unlon (Exhibi t 7) 13 The outstanding lssue In Ms Knaap's grlevance dated November 17, 1992 lS her underfill removal date The remedy sought lS that her underfill removal be backdated from November 25, 1992 to August 25, 1992 The settlement desired set out In the grlevance has two aspects (1 ) That the grlevor be paid at the CO I increment 2 level effective November 12, 1992 (2 ) That the grlevor be paid at the CO II middle rate retroactive to August 25, 1992 The unlon has agreed that the first aspect of the grlevance has been resolved Therefore, what remalns outstanding lS the second aspect The grievor's request for payment at the CO II middle rate effective August 25, 1992, lS based on a claim that effective that date, the grievor's underfill status should have been removed The unlon alleges that the employer's policy relating to underfill removal was administered In an unfair, arbitrary and discriminatory manner, In that it gave local managers discretion In deciding the extent to which unclassified serVlce lS credited for 6 purposes of removal of underfill status As a result, different calculations were used In different institutions In administering the underfill removal policy Some employees had their underfill status removed and received full benefits accorded to CO2, while other employees In identical situations did not have their underfill status removed until much later This according to the unlon, undermined the employees' right to be paid In accordance with the wage rates set out In the collective agreement The employer takes the position that the unlon and the grlevor only raised the pay increment lssue In the grlevance and that it was fully resolved According to the employer, now 8 years later, the unlon was resurrecting the resolved grlevance to make a completely new allegation relating to the employer's underfill removal policy It lS the employer's position that this lssue was raised by the unlon for the first time when the parties appeared before the Board on February 22, 2000 for mediation Employer counsel submits that the unlon was In effect attempting to change what was an individual grlevance relating to pay increment (which was resolved) into a policy grlevance attacking the employer's policy relating to underfill removal She submits that the Board should hold that the unlon lS not entitled to arbitrate 7 a grlevance so fundamentally changed from the one that was filed Alternatively, the employer takes the position that even if there was no fundamental change, nevertheless, the grlevance lS not arbitrable because it lS In substance a classification grlevance The employer submits that as a result of the Sectoral Framework Agreement and Appendix executed and ratified by the parties In August 1993, and the enactment In 1995 of section 51 of the Crown Employees Collective Barqaininq Act, classification grlevances are no longer arbitrable DECISION Having carefully considered the able submissions of both counsel, I have concluded that the employer's objection on the basis that the union's present claim In the grlevance constitutes a classification grlevance must be upheld Accordingly I do not have to consider the employer's "change of grievance" argument I do not set out the sectoral agreement or S 51 of the Crown Employees Collective Barqaininq Act In full here, 8 because the parties are In agreement that the effect of those provlslons was to render classification grlevances inarbitrable The lssue lS whether the grlevance presently before the Board lS In substance a classification grlevance As noted, the grlevor has claimed that effective a certain date - August 25, 1992 - she should have been paid at the CO2 middle rate This claim lS based on her position that as of August 25, 1999, her underfill status should have been removed by the employer Her underfill was removed only effective November 25, 1992 The Board has considered the lssue of whether a grlevance by a correctional officer claiming the right to removal of underfill status constitutes a classification grlevance Re Bishop, 1432/88 (Fisher) was a decision pre-dating the Sectoral Framework Agreement and the present S 51 of the Crown Employees Collective Barqaininq Act There the lssue was whether a grlevance seeking the removal of an underfill assignment which entailed payment at the C01 level while on probation and training In a CO2 position constituted a claim for upward reclassification to CO2 At P 4 the Board concluded In effect the unlon lS stating that once a C01 has completed his training and probationary period, he lS In fact performing the duties of a CO2 and should be paid accordingly This ' , and lS an lngenlous 9 perhaps valid argument but In reality it lS a classification grlevance The employee lS In effect saYlng that he lS performing a higher rated job and should be compensated accordingly Re Moore et aI, 595/92, 2653/92 (Roberts) was a case very similar to the present one In that there the Board was called upon to decide whether a grlevance claiming removal of the underfill status and payment of CO2 rates by certain correctional officers was a classification grlevance rendered inarbitrable by the Sectoral Framework Agreement At p 7 the Board held Accordingly, it must be concluded that during the period addressed In the grlevances, the grlevors were, In fact, classified In the classification of C 0 1 This means that their claims that they should have been paid as C 0 2's because they had completed their training and probation are classification grlevances claiming reclassification to the C 0 2 level As such, they are inarbitrable under the relevant provlslons of the sectoral framework and local appendix, and I must decline jurisdiction The present case lS indistinguishable from Re Moore Here also the grlevor lS claiming payment of CO2 rates as of a certain point of time That claim lS based on an alleged right to have her underfill status removed as of that date 10 As the Board held In Re Moore, the grlevor lS In essence claiming that effective August 25, 1992, her position should have been classified as CO2 Counsel for the unlon pointed out that In a typical classification grlevance the Board would have to examlne In detail the duties performed by the grlevor, and compare those duties to the duties set out In the class standards She correctly pointed out that such an exerClse was not required In the present case However, that does not lead to a conclusion that this was not a classification grlevance Here there was no need to get into a comparlson of the grievor's duties with a class standard only because there was no dispute In that regard between the parties The employer was not taking the position that the grlevor was not performing duties contemplated In the CO2 class standard The situation was the same in Re Moore where the parties had agreed inter alia, that 'the grlevors were not restricted In their work assignments as Correctional officers In any way after appointment to the classified service" As a result, the Board there also did not have to compare the duties of the grlevors with the class standards However, that did not prevent the Board from concluding that a claim for CO2 pay rates on the grounds that 11 the grievors' underfill status ought to have been removed at a specific time constituted a classification grlevance Union counsel relied on three Board decisions, where the Board had held that the grlevances before it were not In substance classification grlevances However, each of those cases turned on its own facts None of them involved a claim for removal of underfill status In Re Barker et aI, 2476/92 (Kaplan) it was held that a grlevance claiming that the grlevors were improperly paid because the employer had selected an lmproper "equivalent" classification pursuant to article 3 3 1, (which was a distinct right unclassified employees had under the collective agreement) was not a classification grlevance In Re Courte/MacGreqor, 1946/93, 206/94 (Roberts) and Re Theoret, 1674/93 (Roberts) it was held that grlevances alleging lmproper payment In violation of article A of the Collective Agreement were In substance discrimination and human rights grlevances and not classification grlevances Those decisions have no application to the present case For all of the above reasons, the Board finds that the present grlevance lS In substance a classification grlevance In that it In effect requlres the Board to conclude that the 12 grlevor ought to have been classified as C02 at an earlier point of time The Board has no jurisdiction to deal wi th such a grlevance as a result of the Sectoral Framework Agreement and S 51 of the Crown Employees Collective Barqaininq Act Accordingly the grlevance lS hereby dismissed Dated at Hamilton, this 8th day of November,2000 ~~ ..:-.,- - - ,':', 0;. ~~ n _~ .. 'i"_ Nimal V Dissanayake, Vice-Chair