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HomeMy WebLinkAbout2003-0905.Dobroff et al.05-01-31 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2003-0905 2003-0906 2004-3397 UNION# 2003-0205-0016 2003-0429-0004 2003-0103-0007 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Dobroff et al ) Union - and - The Crown In RIght of Ontano (Mimstry of the EnvIronment) Employer BEFORE Nimal DIssanayake Vice-Chair FOR THE UNION DavId Wnght Ryder Wnght, Blair & Doyle BarrIsters and SOlICItorS FOR THE EMPLOYER Andrew Baker Counsel Management Board Secretanat HEARING January 19 2005 2 DeCISIon The Board was seized with three grlevances, two filed by Mr Mike Ladouceur (File nos 2002-3081 and 2003-0906) and one filed by Mr Frank Dobroff (File no 2003-0905) At the commencement of the hearing the union advised that grlevance no 2002-3081 filed by Mr Ladouceur had been withdrawn Further, the parties informed me that they had agreed to consolidate with the .. . a grievance dated April 19, 2003 filed remalnlng grlevances, by Mr Gerald Diamond (File no 2004-3397) Therefore, the Board was left with three grlevances filed by Mr Dobroff, Mr Ladouceur and Mr Diamond respectively This preliminary decision deals with a motion by the employer that the grlevances are in substance classification grievances and as such beyond the Board's jurisdiction The parties agreed that for purposes of this preliminary decision, the Board ought to assume that the union will be able to prove what it asserts, and on that basis consider whether the grlevances are within its jurisdiction Through a statement of particulars filed, and by way of submissions, the union asserted that the evidence will establish the following facts The three grlevors are, and for some time had been, employed as Air Quality Analysts (AQA) They were 3 previously classified as Air Quality Analysts, but in February 2003 they were reclassified at the Scientist 4 level, retroactive to January 1, 2002 In their AQA capacity the grievors provide group leadership to Air Quality Technicians who are classified at the Environment Officer 4 level The employer also employs group leaders in its water quality operations, both in the Surface Water and Ground Water programs (Water Group Leaders) A comparison of the AQA and Water Group Leader ("WGL" ) job descriptions will show that there lS no real distinction in the nature of their work except that the former work with air quality programs, while the latter work with water quality programs WGLs were also reclassified at the same time as AQAs (February 2003) to the Scientist 4 level, retroactive to January 1, 2002 The instant grlevances stem from the fact that, soon after the reclassification of the two groups, WGLs were temporarily assigned as Acting Geoscientist 4, but the grlevors were not so assigned The union asserts that the employer had the option of reclassifying the WGLs at the Geoscientist 4 level Had that been done, the grievors would not have been able to seek relief before the Grievance Settlement Board However, the union will 4 establish that the employer, rather than reclassify, resorted to temporary assignments for the WGLs This resulted in increased acting pay for the WGLs pursuant to article 8 1 1 In these grlevances the union asserts that the employer's actions constitute a bad faith, arbitrary and discriminatory exercise of its management right and discretion to grant temporary assignments The union further asserts that Slnce 1997 AQAs and WGLs had been paid at the same rate in recognition of the identical nature of their work In 2000 a group classification grievance was filed for more than 50 employees, including the AQAs, WGLs Among the claims was that AQAs and WGLs should be classified at the Geoscientist 4 level The grlevance was denied at step 2 on June 29, 2001 and was referred to the JSSC and is awaiting hearing Following this the employer unilaterally reclassified both AQAs and WGLs at the Scientist 4 level, and immediately assigned the WGLs temporarily to the position of Acting Geoscientist 4 In addition to alleging a bad faith, arbitrary and discriminatory exercise of management rights and discretion, the union alleges that the employer's actions were influenced by improper motivation It lS alleged that the employer's differential treatment of AQAs and WGLs, was not related to any 5 differences in the AQA and WGL positions or duties Instead, it was an improper reaction to the political pressure resulting from the Walkerton water contamination incident, the subsequent inquiry and report The union asserts that grievor Ladouceur testified at the Walkerton Inquiry and was critical of the Ministry He was also the Local union president and a union activist It lS alleged that the denial of the temporary assignments to AQAs was in part an improper reprisal for Mr Ladouceur's active role in the union, particularly in relation to the Walkerton issue It lS further asserted that there are "personal issues" between the Technical Support Manager for the Northern Region and at least two of the grlevors, and that these personal lssues were part of the decision not to grant AQA's the same temporary assignments as that given to WGLs The union finally asserts that the grievors had been unofficially told by a supervisor that among the reasons they did not get the same temporary assignments as WGLs was the employer's conclusion that the grievors were not working to a satisfactory level to the expectation of management The union asserts that the management considered that the grlevors were not acting professionally because of their grievance activity 6 Hence, in part, it was a reprisal for engaging in grievance activity Union counsel repeatedly, clearly, and unconditionally assured the Board that in these grlevances the grlevors do not allege that they are improperly classified as Scientist 4 Nor are they seeking an order that their positions be reclassified The remedy sought will be for an order that the grievors be granted the same temporary assignments as that given to WGLs Employer counsel put the union on notice that the employer disagreed with many of the assertions made by the union Specifically, it was repeatedly stated that the WGLs did not obtain their acting Geoscientist 4 positions through temporary assignments as asserted by the union However, as noted before, for purposes of determining this preliminary motion, the Board has to assume that the union will be able to establish what it asserts The union specifically asserted that the WGLs were temporarily assigned as Geoscientist 4s and that they continued to be classified as Scientist 4 after those assignments Indeed, union counsel conceded that if the WGLs had been reclassified at Geoscientist 4, the grievors had no entitlement to grieve before the Grievance Settlement Board 7 Apart from disputing the assertions made by the union, the employer's argument had two main themes First, it was submitted that the Board had no jurisdiction to reVlew employer's exercise of management rights or discretion for bad faith, arbitrariness or discrimination unless it lS alleged that such conduct adversely affected some right the grievors had under the collective agreement Secondly, the employer urges the Board to focus on the remedy sought by the grlevors It lS submitted that even though disguised as a temporary assignment grlevance, in effect the grlevors were claiming that they be reclassified from Scientist 4 to Geoscientist 4 Counsel points out that the grievors were displeased about the employer's decision to classify them at Scientist 4 They have a grlevance challenging that classification pending before the JSSC The instant grlevance, according to the employer, lS an alternate attempt, disguised as a temporary assignment grlevance, to attack that classification before the Grievance Settlement Board Counsel submits that the only way the Board can satisfy the grievors' remedial claim is by ordering that they be reclassified as Geoscientist 4 In Re Rosamond, 2086/96 (Leighton) the Board held that Appendix 7 - Classification System Overhaul, section 3, was clear and unambiguous in stating that the JSSC had jurisdiction to review and decide "all complaints or differences involving 8 allegations of improper classification" and that there was, "nothing in this language to suggest that it only covers classification grievances where the grlevor lS alleging, in the traditional way, that his or her classification should be higher" (p 7 ) While recognizing this limitation on the Board's jurisdiction, the Board in Re Boyer, 0742/00 (Abramsky) at p 11 cautioned that "Each case must be carefully evaluated on its specific facts and bona fide temporary assignment grlevances should not lightly be dismissed as disguised classification grlevances " This brings us full circle to the basic proposition that the critical lssue is whether or not the substance of a particular grievance lS an allegation of lmproper classification, and that in deciding that lssue the specific facts of each case are determinative The employer referred me to a number of decisions in which this Board had declined jurisdiction on the ground that the substance of the grlevance was about improper classification Particular reliance was placed on Re Knaap, 3164/92 (Dissanayake) , Re Boyer 0742/00, Re Anthony, 1999-1977 (Abramsky) , and Re Ashley, 2001-1700 (Abramsky) In Re Knaap, the grievor claimed that as of August 25, 1992, her underfill status should have been removed and that as of that day she 9 should have been paid at the C02 middle rate The Board, citing prior decisions, declined jurisdiction on the grounds that the grlevor was In essence claiming that effective August 25, 1992 her position should have been classified as CO2 In Re Boyer, the grlevance was framed as a temporary assignment grievance under article 8 1 1 The Board notes at p 9 that the grlevance alleges that for the period September of 1999 to the present "the work that I am undertaking is not defined in my present job spec, thus indicating that I am performing duties of the EO 4 job spec which is a classification with a higher salary maximum" In that case the Board held that it was called upon to decide whether the grlevor, while classified as an EO 2 was performing duties of an EO 4 At P 11 the Board held In this case, a determination of whether the grlevor was "temporarily" assigned to perform work that "is not defined in my present job spec, thus indicating that I am indeed performing duties of EO 4 job spec" requlres, in effect, a determination of his proper classification Under the specific facts of his case, the lssues raised in the June 5, 2000 grlevance are identical to the lssues raised in his classification grievance Pursuant to Appendix 7, however, it lS the JSSC, not the GSB, which must "review and decide on all complaints or differences involving allegations of improper classification" At p 12 the Board further noted, "His concern, though phrased as a temporary assignment dispute, lS that he is not 10 properly classified as an EO 2 There was no assertion of any change in duties at any relevant time - just a dispute whether those duties are the work of an EO 2 or EO 4" In all of the cases cited to me where the Board had declined jurisdiction on the grounds that the grlevances were In substance classification grievances, the Board found that it had to, in order to dispose of the grlevances, determine whether or not the grievors' positions were properly classified considering the work they were performing In Re Aitken, 678/87 (Gorsky) "classification grievances" were said to be "grievances that can only be decided if the Board must first render a decision with respect to the proper classification of a grievor at some point in time" In the cases where the Board declined jurisdiction the Board found that to be the case In the present case, the employer also asserts that the Board must necessarily decide whether the grlevors are properly classified as Scientist 4, in order to determine the grlevances However, that assertion is untenable in light of the position taken by the union The union assured in no uncertain terms that it was not, in this proceeding, asserting that the grlevors were improperly classified as Scientist 4 Nor are the grlevors seeking a change in their classification Indeed, the union stated that for purposes of this case, the Board can proceed on 11 the basis that the grievors were properly classified as Scientist 4 The union has asserted that the grlevors were denied temporary assignments to higher rated work under article 8 1 1 It has undertaken to prove that it was through temporary assignments, and not reclassifications, that WGLs assumed the higher rated work Since I have to assume that the union will prove what it asserts, the grlevances are not In substance classification grievances The union does not seek a determination, and the Board will not determine, whether at any point of time the grlevors were improperly classified Instead the dispute raised is whether or not the employer improperly exercised its management rights or discretion to make temporary assignments I have noted that the grlevors are part of a group grievance which is presently pending before the JSSC In that grlevance some 50 employees classified as Scientist 4 claim that they are improperly classified Given that a dispute exists as to the grievors' proper classification, one may tend to be SUSPlClOUS that the instant grlevances are an alternate attempt to pursue that dispute However, a close perusal of the circumstances satisfies me that this is not the case It lS to be noted that the classification group grievance was filed in 2000 prior to the alleged temporary assignments The group grlevance was filed on behalf of several groups of employees classified as Scientist 4, including AQAs and WGLs That grievance pre-dated, and does not in any way relate to the 12 alleged temporary assignments In the group grlevance the union clearly has sought reclassification of all of the groups of grlevors, including WGLs In contrast, in the present grlevance, the focus lS clearly on the alleged temporary assignments Moreover, in these grlevances the union is not seeking a determination of the appropriateness of the grievors' classification as Scientist 4 On the contrary, it has stated that the Board can accept for purposes of these grlevances that the grlevors are properly classified as Scientist 4 In the circumstances I am satisfied that unlike in the group grlevance which is before the JSSC, the substance of the grievances before this Board is not about the appropriateness of classification The union conceded that the Board may have to compare the duties of AQAs and WGLs However, I agree with the union that this by itself does not turn these grlevances into classification grievances The . . done not for the comparlson lS purpose of determining the appropriateness of classifications The thrust of the union's claim is that equals were treated differently, and that there was improper motivation for that differential treatment Any comparison of duties would only serve to determine whether AQAs and WGLS were In fact "equals" in the sense of performing the same or similar work If that lS established to be so, the union's argument that there was no legitimate operational or business explanation for the 13 differential treatment will be buttressed That would be the sole purpose of the comparlson I turn now to consider whether, the Board has jurisdiction to review the employer's exercise of management rights to make temporary assignments in this particular case In Re Ashley, 2001-1700, (Abramsky) at pp 14, the Board summarized the relevant principles established in Re Bousquet, 0541/90 (Gorsky) as follows The decision in OPSEU(Bousquet)r supra, does not assist the Union The Board in that case did not adopt a general duty of good faith and reasonableness in the exercise of management rights At issue was management's denial of a training and development opportunity to an employee, allegedly because he was a Francophone The Employer argued that Slnce training and development was a function reserved to management under Section 18 (1) of CECBA, the Board had no jurisdiction to hear the grlevance The Board determined, at p 67, that "the Grievor has no statutory right to grieve because he has been denied a training and development opportunity Here, the right to ralse the subjects of training and development by way of a grievance has been restricted by means of a clear indication on the part of the Legislature " Nevertheless, the Board also concluded that the employer did not have "carte blanche" to do what it wishes under the purported exercise of an exclusive management function with respect to training and development " (P 58 ) Instead, the Board had the 14 right to review the employer's exercise of its discretion for good faith and reasonableness because developmental opportunities impacted an employee's ability to compete in job competitions under then Article 4 of the collective agreement The Board held at p 35 "[T}he significant fact required to place a limitation on the unfettered exercise of a management right lS the existence of a provision in the collective agreement which either be negated or unduly limited by a particular application of such right " Consequently, under Bousquetr supra, the jurisdiction of the Board to review the Employer's exercise of a right reserved to management lS derivative - it depends on the existence of a provision in the collective agreement which might be adversely affected by management's action Article 8 1 1 of the collective provides ARTICLE 9 - TEMPORARY ASSIGNMENTS 8 1 1 Where an employee lS assigned temporarily to perform the duties of a position in a classification with a higher salary maximum for a period in excess of five (5) consecutive working days, he or she shall be paid acting pay from the day he or she commenced to perform the duties of the higher classification in accordance with the next higher rate in the higher classification, provided that where such a change results in an increase of less than three percent (3 ) , he or she shall recelve the next higher salary rate agaln 15 While employees have a right under Article 8 to be paid acting pay at the higher rate when they are temporarily assigned to duties of a higher paid classification, the decision to temporarily assign is itself a matter of management rights Therefore, the lssue is whether the union has asserted that the alleged improper exercise of management rights, l e the preferential treatment of WGLs, resulted in the contravention or at least in adversely affecting any collective agreement rights of the grlevors On the basis of the union's allegations, I find that the foregoing criteria are clearly met Article 3 2 provides that "There shall be no discrimination or harassment practised by reason of an employee's membership or activity in the union" The union has asserted that it was the grievors' past grlevance activity that caused the employer to conclude that their work performance was not satisfactory and that this formed part of the decision not to extend the temporary assignments to the grlevors Moreover, it lS alleged that grievor Ladouceur's union activity and role in the Walkerton issue caused the employer to take reprisal against Mr Ladouceur by denying the higher rated temporary assignments to all AQAs If this allegation is substantiated, the employer's exercise of management rights would have resulted in an outright violation of article 3 2 In these circumstances, I am convinced that the 16 test for the Board seizing jurisdiction, as set out In cases such as Re Bousquet, lS clearly met With regard to remedy, the union has clearly assured the employer and the Board that it will not be seeking an order that the grievors' classification be changed The employer stated that it would be arguing that the Board lacks jurisdiction even to order that the grievors be given temporary assignments to work in a higher classification because it would still be in the nature of an order, albeit temporary, for reclassification If the employer's position is ultimately accepted, the Board will not grant that remedy to the grlevors Then it will have to fashion a remedy that is within its jurisdiction Indeed, if no other remedy can be fashioned without changing the grievor's classification, it may well be that the union will be restricted to a declaration that the manner the employer exercised its management rights was lmproper in that it compromised or constituted a contravention of article 3 2 However, the narrow scope of the remedy that may flow, provided it does not include a determination of whether the grievors were properly classified at any point of time, does not deny the Board jurisdiction to determine the issue of liability In light of all of the foregoing, the Board concludes that it has jurisdiction to deal with the grievances before it It 17 should be noted that this conclusion is based on the assurances given by the union (which are noted in this decision) as to what allegations it will pursue and what remedy it will seek The union will therefore be held to the assurances made Either party may contact the Registrar for scheduling of these grlevances for hearing on their merits I remain seized for that purpose Dated this 31 t day of January 2005 at Toronto, Ontario ~- . . ,.... , .. .. ... ... . . . , ~ . . . -, ~ .... . ." .... " m" .;: .:':. '.: . '..:;.1"" Nlma.. . .... "':. . Vice-Chal . rson