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HomeMy WebLinkAboutTurner 19-03-20IN THE MATTER OF AN EXPEDITED CLASSIFICATION ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION, Local 238 (FOR SUPPORT STAFF) (hereinafter called the "Union") -and- COLLEGE EMPLOYERS COUNCIL (FOR COLLEGES OF APPLIED ARTS and TECHNOLOGY) In the form of CONESTOGA COLLEGE (hereinafter called the "College") -and- GRIEVANCE OF GORDON TURNER OPSEU File No. 2017-0238-0010 (hereinafter called the "Grievor" or the "Incumbent") REPRESENTING THE UNION: REPRESENTING THE COLLEGE Richard H. McLaren, C.Arb. Vikki-Lee Poirier, President Local 238 Troy Mantle, Vice -President of Local Gordon Turner, Grievor Carolyn Galvin, Manager Labour Relations Human Resources Ian Smith, Facilities Manager Pete Schlei, Senior Manager Maintenance and Operations A HEARING IN RELATION TO THIS MATTER WAS HELD AT CONESTOGA COLLEGE IN KITCHENER, ONTARIO ON 28 JANUARY 2019. AWARD ISSUED 31 JANUARY 2019. REMEDIAL SUBMISSIONS COMPLETED 15 MARCH 2019. SUPPLEMENTARY AWARD On 13 March 2019 1 received a timely request to deal with a matter arising out of the Classification Award I issued on 31 January 2019. 1 retained jurisdiction over the remedy in this matter in the following terms: "The parties are hereby directed to take the necessary steps in order to implement this decision. If there is any dispute as to the implementation of my Award, I retain jurisdiction to resolve those disputes and issue a supplementary award. Jurisdiction is retained to complete the process of ensuring that the remedy is complete and that the Grievor is made whole to the extent that may be required. I will remain seized of this matter with jurisdiction to complete the remedy in this Award for a period of 45 days from the date herein. Either party may, on written request to the Arbitrator, ask me to reconvene the Hearing for the purposes of determining the remedial aspects of this Award. If no written request is received within the stipulated time frame, l will no longer retain jurisdiction over the implementation of the remedy arising from this Award." 2. The Grievor requested that in determining the retroactive pay owed under the Award he be placed at the top of the 4th year of the grid for Payband G. The College replied that: "We understand that the College implemented the award appropriately. We have implemented the increased pay band assignment at the date prescribed by the award. Consistent with the CA language on reclassification and re-evaluation (17.2.1), when an employee moves to a higher pay band, we have always placed them at the step in the new band that represents not less than what they would have made at their next increase in their current/previous band. These provisions must be followed and l do not see it as within possible scope of the award to outline the process differently. While we hope that employees are pleased with the outcome of such processes, that is not always the case. In many ways, the situation is not unlike a case where an employee receives retro -active adjustment to the date of the classification grievance, however remains dissatisfied as they feel the work had been performed at a higher level for a period of time before that. We nonetheless hold to the terms of the classification award. With respect to the email of March 13 from Vikki Poirier, I wish to point out that `the' role she references is actually misleading as there are two positions. We did not reclassify any position from a G to an E. We 2 eliminated a position and reassigned the employee. When the employee held the previous pay band G position it was a Lead role and the duties were not the same as the pdf we examined in the classification grievance." 3. This is a case where the jurisdiction of the classification arbitrator under the Collective Agreement ("CA") and that of the general arbitrator are in conflict. awarded the revised Payband G in the classification grievance but limited the retroactive payment to commence from the date of the grievance. That is the only jurisdiction that a classification arbitrator has over the grievance. I cannot go back into the history of the matter leading to the revised PDF reflecting a new position and the classification decision I have issued. Dealing with non - classification grievances under other parts of the CA is the jurisdiction of the other group of arbitrators under the CA and not that of a classification arbitrator. However, for purposes of making the Grievor whole in the remedy I ordered, I can and must determine the level of the grid at which the Grievor's retroactive pay ought to be established. To that limited extent I have jurisdiction to deal, at least in part, with the request of the Union. 4. 1 agree with the College submission that there was no reclassification of an existing position. What occurred was not a reclassification of a position and determining that position was incorrectly classified as at Payband G and that it should be at Payband E. The position which was classified at Payband G was eliminated. Then the Grievor was reassigned to another position and unlike the prior position there was no lead hand role in the new position. What I examined in the classification grievance was the rating of the new position. I found that the Union and the Grievor had established that the new position was improperly classified and that it should have been determined to be at Payband G. Any dispute about the new and old positions occupied by the Grievor in this matter is not within my jurisdiction as a classification arbitrator. Those matters must be dealt with by a non -classification grievance arbitrator. 3 5. The Grievor had occupied the position since October 2017 but had not grieved the classification of the new position until 15th of December of 2017. In those circumstances I cannot as the classification grievance arbitrator go back beyond the time of filing the classification grievance. Therefore, I have no jurisdiction to award retroactive pay before the 15th of December 2017. 6. The Grievor filed a ten (10) page written submission in response to the College and it's position in determining the remedy of retroactive payment arising out of my Award. In that submission the Grievor asserted that when he was reassigned to the Conestoga Campus it was the same position that he had been doing at the Guelph campus since 1998. That assertion and any finding I might make on that point is beyond my jurisdiction as a classification grievance arbitrator. A grievance would need to be filed and dealt with through the grievance and arbitration procedure of the CA if the parties did not agree. A general arbitrator under the CA would have jurisdiction over that grievance. I understand from the Grievor's submission that an improper layoff grievance was filed. 7. After occupying the new position and grieving the layoff the College agreed to continue to pay the Grievor at the prior Payband G until the 90 day period of grand -parenting under the CA had run out on the 13th of October 2017. Despite the fact that the submissions on behalf of the Grievor at the grievance arbitration requested full retroactivity to go back to the 13th of October 2017 1 did not have the jurisdiction to grant that request as is explained herein. 8. The College has placed the Grievor at the step in the new Payband that represents not less than what they would have made at their next increase in their current/previous Payband. The Grievor and the Union have submitted to me nothing that would indicate that this manner of proceeding by the College was not in accordance with the CA. M 9. For all of the foregoing reasons the request of the Union is denied. Retroactive pay can only go back to the date of the grievance on the 15th of December 2017. The College has correctly determined the step upon which the retroactive payment will be made. 10. The Arbitrator will continue to remain seized of this matter under the terms of the original award as set out above for a period of 30 days from the date herein after which the Arbitrator will have no further jurisdiction over this matter. Either party may, on written request to the Arbitrator, ask me to reconvene the Hearing for the purposes of determining the remedial aspects of this Award. If no written request is received within the stipulated time frame, I will no longer retain jurisdiction over the implementation of the remedy arising from this Award. DATED at London, Ontario this 20th day of March, 2019. Richard H. McLaren, C.Arb. Arbitrator R