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HomeMy WebLinkAbout1993-2124.Breski.95-08-04 ; ~~;. --- ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE 1,,~ f'[, t ' ,\( ( (. I,' \;l:' SETTLEMENT REGLEMENT cJCI,;j)J\ ~,o \), BOARD DES GRIEFS ~(\ I 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1 Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-1396 GSB # 2124/93 OPSEU# 94A012-94A015 IN THE MATTER OF ~ ARBITRATIO~ Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Breski et all Grievor ~ # - andl- The Crown in Right of ontario (Niagara Parks commission) Employer BEFORE F. Briggs Vice-Chairperson ,-FOR THE M McFadden GRlr'VOR Counsel Koskie & MinsltY - Barristers & Solicitors FOR THE c. Zabek EMPLOYER Counsel Hicks, Morley, Hamilton, stewart & storie Barristers & Solicitors HEARING \ June 16, 1995 f , ~ ( r..," I There were four grievances filed in November of 1993, by Radio Dispatchers employed by the Niagara Parks Commission. Each grievoralleges that he has been improperly classified because his classification no longer exists. They ask, by way of remedy, to be classified as a Conununications Operator 2. Rather than proceed to a hearing on the meritS of whether the grievor's are properly classified, the parties agreed that, as a preliminary matter, I make a determination which might assist the parties to resolve the matter. The Union reserved its right'to argue the grievances fully in the event that I should find in favour of the Commission. l!r,l!r The relevant articles of the Collective Agreement between the parties, which expired December 31, 1989; provided: 4.01 (a) Salaries shall be as per the attached Appendix II, Part A which forms part of this Agreement. In addition, where applicable, the Commission agrees to implement equivalent saIaiy agreements to those granted to Civn Servants as a result of negotiations by The ,Ontario Public Service Employees Union with the Government of Ontario or as a result of the implementation of an Arbitration Award. In the same manner and effective on the same qates as in The Ontario Public Service. Appendix II Unit CI~ssiflCations Salary Ranges ./ C.S.C. EFFEC. NO. CLASSIFICAllON SCHEDULE DATE 1 M.S. -05 - Radio Operations 16703 Radio Operator 2 3 Jan 1/89 Hr 12.81 Wk. 512.40 --- 1 I ~~ -- \, 2 The salary schedule contains a level two and three for the Radio Operator 2 in the Niagara Parks Collective Agreement. As can be seen from the above,the Commission paid employees the same salary as their civil service counterparts. Although this had been the practice sinc~ the early 1970's, the Commission asked a Board of Arbitration to end the practice due tbfiscal constraints. In a decision dated April 1993, Arbitrator Keller stated, at page 2: Although there appear (sic) to be a great maAy issues unresolved~ particularly with respect to Seasonal employees, the dispute in reality hinges on a philosophical difference between the partie~. OPSEU wishes to maiOlain and, arguable, strengthen traditional tie-ins to the OOlarier Public Service. On the other hand the NPC wishes to sever that relationship and deal with OPSEU as a local employee for whom terms and conditions of employment should be ,established ,in ~ccordance with prevailing local Industry standards. And at page 12: After considerable ret/ection this Board has determined that it agrees with, the NPC's position. It is not easy to throw out 20 years of history; indeed one should only do so with ,great care, and 'after a careful analysis of all the factors submitted by the parties. .However, notwithstanding the above, we do not find it appropriate to change the status quo during the life of this Collective Agreement. "- Consequently, an Agreement commencing January 1, 1991 and terminating December 1993 is awarded. In keeping with our earlier comments.it is not our intention to alter the status quo during the Ute of this agreement. The current language in Articles 4.01 (a), 14 01 (a) and 20.01 is awarded. The wording of those clauses will expire December 30, 1993 to be replaced, on December 31, 1993with....... From, the 1970's until 1992, the Radio Operator 2 position 'at the Niagara Park Commission was paid the same salary as the Radio Operator 2 position in the public service. Not surprisingly, the public service had its class standard for its radio operators and the - 3 Commission had its own class standard~ There were several differences in those two class standards. In 1992, Radio Operators employed by the public service, many of whom were at level 2, grieved that they were improperly classified. Prior to the arbitration hearing, the parties agreed to a new class standard. The new position was called a Communications Operator The Labour Relations Tribunal was called upon to detennine the appropriate salary for this new position. In May 1992, Vice Chair Keller issued a decision affecting a number of MiniStries and the Union which provided a wage increase of eleven percent for the Communications Operator. 2 position, retroactive to August 1~, 1990. In October 1993,one of the grievors in the instant ptatter became aware of the disparity between his pay and that of the Ontario Provincial Police dispatchers who work for the Ministry of the Solicitor General. Shortly thereafter, the grievances were filed It was the Union's position that Article 4.01 provides that a Radio 'Qperators 2 employed by the Commission is entitled to be paid the increased salClIY" awarded to the Communications Officer 2 position, at least until December 30, 1993. - I . "- 4 It is the Commission's position that the Communications Officer 2 position is not the counterpart position for the Radio Operators and therefore, no monies are owing to the grievers. Mr McFadden, counsel for the Union, argued that for more than twenty ye~ and by agreement of the parties, the Radio Operators received identical compensation to their counterparts in the public service. Indeed, even their titles were the same. Copies of the both Radio Operator 2 class standards w~re provided and it was c~ear that their duties and responsibilities were different and, presumably peculiar to its own workplace. The public service class standard changed as of August 13. 1990, when the position title became Communication Operator 2. Notwithstanding the change in title and class staildard, the Union urged that. in both instances, the main aspect of the job is dispatch. The grievors are entitled to receive the increase given to the Communication Operator 2 I position because of the clear language of the collective agreement, contended the Union. Article 4.01 refers to lIequivalent salary agreementsll Obviously, the parties intended to treat l1ikes" alike. Article 4.01 takes into account the fact that salaries may change as the result of an arbitration award and that is precisely what has occurred in the instant matter Article 4.01 is a broadly worded agreement for future contingencies with explicit reference to arbitration awards. Indeed, article 4.01 was designed for exactly this very type of situation. .' 5 The Union suggested that nothing turns on the title change from Radio Operator to Communications Operator in the public service. The Communicatiqns Operator is still the appropriate counterpart. A perusal 'of Radio Operator 2 class standards in both the Commission and the public service will show that the jobs were ,never identical. Because the new titleanc;i class standard were developed and the salary was awarded by way of an arbitration award, the grievors are entitled to the same compensation, at least until December 30, 1993, and the Union requested I make such a declaration. It was specifically agreed by the parties that, in the event that I am prepared to make such a I declaration, ,tnot go on to make any finding regarding retroactivity Ms. Zabek, for the Commission, argued that 'the issue is not as sb:nple as the Union has suggested Specifically, the Union has failed to give any meaning to the phrase lIin addition, where applicable II as set out in the second sentence of Article 4.01 This is a situation where'the fact that the position of Communication Operator 2 in the public\ service received an eleven percent increase in their wages, is hot applicable. The phrase ''not applicable II must have meaning and, in the instant matter, it means that such increases are not automatic. , The Commission asserted that the meaning of IIwhere applicablell can be found in Appendix n which fonns part of the collective agreement. On the salary schedule, at the left side of the page IIC.S.C.II can be seen. This is an abbreviation for IICivil Service ) , 6 Commissionll That is the specific number designated to a particular position. With some classifications in the salary schedule, there is a humber with "AD" which refers to , , Administrative Services. In some circumstances, such as with Cook's Helper, there is no reference to a number under C.S.C., but a notation of NPC. It is therefore clear there are instances where the parties have agreed not to adopt the publi9 service salary but to negotiate their own. This fact was not disputed by the Union for the purposes of this limited question before thiS Board. The parties specifically agreed that the pay received by public service pepple who were so classified would serve as comparators. ~ ~" By the insertion of the public service classification nwnbers, the parties expressly addressed the issue of appropriate comparato,rs. The public ~eIVice class standard had the position number of 16703 for Radio Operator 2. That number appears on the class - \ standard itself and is set out_in Appendix n of the Commission's collective agreement beside the salary ~signed to trnitof Radio Operators. The position of Communications Operator 2 had a its own class standard and the position number is different, that is 16708. At time the parties agreed to this regimen, there was much similarity in the duties and responsibilities of the position. However, a comparl1?on of the Commission's Radio Operator 2 class standard and that qf the public service Communication Operator 2 will reveal many significant differences. " -- -- -- . - - ---. - - - - - --- 7 / / Ms. Zabek submitted that article 4.01 has a threshold requirement, that hi, 'where applicablell and that has not been met in these circumstances. Further, the parties chose the appropriat~ comparat~r, that is 16703 - Radio Operator 2. In the event that a position ! is reclassified with a new title, class standard and position number, there is no automatic raise as the J;'esult of article 4.01 because the new position is no longer the comparator -' Finally, the Commission argued that the Board was without jurisdiction to make the ( declaration as requested by the Union because, if I did, I would effectively be altering the collective agreement and this is specifically prohibited QY article 27 1.3 and article 13.13. Article 4.01 provides that the salary is as set out in the appendix and if'I ordered an increase, I would be changing the position title of 16703 to that of 16708. Ms. Zabek suggested that the Commission's Radio Operators are attempting to "ride on the coat-tailsll of the Communications Operators. If thegrievors are improperly classified and compensated,as suggested,by the Union, then they should be obliged to prove that to the Board. In reply, th~ Union asked the Board to consider that 'where applicable II is prefaced by lIin additionll It is therefore clear that if the Commission's view was correct there would have been no need for Article 4.01 The bargain between the parties was that the compensation would be the same, plus whatever the public service get lIin additionll The I 0 8 Union is not ~king.for an enlargement-in the collective agreement, only a declaration that it has been violated. DECISION After consideration of the matter, I am of the view that I cannot provide the__declaration that the Union is requesting. The negotiated salary scale in the collective agreement provides that the appropriate method of indicating the "tie-in" was by way of Civil Service Commission Number~ The evidence was that, for theJast twenty years, the Commission's " Radio Operator 2 position rec~ived the same salary as the Radiq Operator 2 position within the public service. I Both parties referred to the,Radio Operator clas,s standards in both the public service and "- the Commission as Well as the new class standard for: the Communications Operator 2. The similarity or dissimilarity of th~se positions at any particular point in time is not ,) determinative of the matter as it has been put before me. That. consideration would be more appropriately taken into account if the issue was whether the grievors were improperly classified. As a preliminary matter, I cannot find that the grievors are entitled to an eleven percent increase just because the employees who were once their counterparts _W.ere {e,cl~sified \. -- '" l - - . ~~ ~ I 9 t6 Communication Operators and received such an increase. Simply put, it is not the Radio Operators 2 position within the public service that is receiving eleven percent more compenSation than the grievors. It is the Communication Operator position. I accept the Union's argument that "in addition" as set out in Article 4.01 must qe given some meaning. I accept the submissions made by the Commission on this point. I am of the view that it · takes into account those situations where, for eXample, the Radio Operator 2 position within the public service got a raise in compensation as the resul~ of an agreement or an arbitration award. If the public service position of Radio Operator 2, classification number 16703 hadrepeived an eleven percent increase, the Commission would have been obliged to implement the "equivalent salary agreements II to its own Radio Operators. I 1 However, the parties agreed .to tie themselves to the classific;:ations of the public service { \ and they specifically did so by way of civil service commission number. The Communication Operator 2 position in the public service is not the same classification title or civil service commission number as the Commission's Radio Operator 2 position. If it were, I may well have f011+ld for the Union. That they differ leads me to the inevitable conclusion that the grievors are not entitled to the increase in compensation received by ~ the civil service Communication Operators as of August, 1990. I ~ i (->7 / ? Signed in Toronto this 4 t lday of August, 1995. ;iI/I~-1J, e city D . ggs / ' Vice Chair - --