Loading...
HomeMy WebLinkAbout1979-0098.Newman et al.82-06-14I ‘. 98/?9 IN THE MATTER OF AN ARBITRATION Under THE CROWNEMPLOYEES COLLECTIVE BARGAINING ACT Between : Before: Before THE GRIEVANCE SETTLEMENT BOARD CirPE (Mrs. A. Newman et al) Grievors -and- The,Crown in Right of Gntario (The Workmen,'s Compensation Board) Employer E. B. Jolliffee, Q.C. - Vice Chairman A. G. Stapleton - Member M. G. Watters - Member. For the Grievers:. G. 0. 'Jones! National Representative Canadian Union of Public Employees '. , F. Robertson, Senior Stewart Local 1750 For the Employer: M. P. Moran, Counsel Hicks,. Morley, Hamilton, Stewart h Storie - J. Boyce, Staff Relations Workmen's Compensation Board Hearings: November 20, 1981 November 27, 1981 ,,: , - 2 - INTERIM DECISION MS . April Newman and other employees of the Workmen's Compensation Board have grieved against their classification, relying on the provision in what is now numbered as Section 18(2) of the Crown Employees Collective Bargaining Act, that in, addition to any other rights of grievance under a collective agreement, an employee claiming that his position has been improperly classified may refer it for final determination by arbitration under what is now Section 19 of the Act. In the language used by their steward, Ms. Carol Haffenden (who is herself a griever) the complaint is as follows: : I grieve that my position, Telephone Enquiry Clerk 2, salary grade 07 ($188.52 to $222.12) " is improperly classified, since-there have been significant changes to warrant reclassification. The "settlement required" was that the position be re- classified to Salary Grade 05 (S221.00 to S270.28) retroactive to the date of the grievance, which was April 26, 1978. Ms. Haffenden's grievance also specified that the position was in the Section known as "Claims Telephone Enquiry Service" of - 3 - the Branch known as "Claims Information and Counselling." The case did not come on for hearing until November 20, 1981, when counsel for the~employer raised several preliminary questions and made'an argument in support of his objection to jurisdiction. The grievorsl reprbsentative obtained an adjourn- ment so that he could.consider these matters. When the hearing continued at a later date, further argument.wa.sheard from both parties, and one witness, who identified certain exhibits. By that time, it had been agreed that this Board be asked to render a considered decision on two issues: a) Whether the jurisdictional objection founded, and is we.ll- b) Whether the union representing the grievors iS required to show "significant change" in the work assigned-to the.position.' . . 2. .~ Before referring to the arg-uments it is necessary to consider the full text of Article 18 in the applicable collective agreement between Canadian Union of Public,Employees Local 1750 and the Workmen's Compensation Board, Ontario, for the period from October 1, 1977, to September 30, 1978,~. ,: It -was 'as follows; Payment of,Wages and Allowance _ 1. 'B-e Employer shall pey salaries weekly in accordance with Schedule A attached hereto and.forming part of this !qreement. Bach pay day each employee shall be provided with an itemized - 4 - statement of his salary, overtime ard other suppkmentaq pay ard deductions to be included with his salary chegue in a sealed envelope. 2. Classification ti Job Zvaluation system i. Classification (a) Classification of !Tmployees Every employee covered bythi~~?qreemant shall be classSied urder a salary grade or level, job title and/or job description appropriate to tie cccqzation in which he is regularly employed and in accordme with Se&Mule "A" of this ?greement. Employees shall remain so classified for the &.raticn of this Agreement. unless transferred to another job, or unless the wrk changes significantly, in which case the employee and the Lhicn will be advised. (b) Elimination of Present Classification Fxistingclassifications shallmtbe eliminated or substantial>] charged without notice to the Won. The Employer will erdeavour to provide this notice in advance. (c) Reclassification of hployees when a classification is eliminated or substantially changed, any employee tie believes he is incorrectly classified may discuss ths matter with his supervisor and , failing satis- factory settlement, may institute a grievance in accordance with Article 2 of this Qreement. iL. Job Evaluation grstem 'Ib parties have established a comnittee to examine the current job Evaluation System for the Clerical and kdstinistrative positions. This examination shall also include the question of tiether all jobs shall be evaluated ard, if so, @ether cne job evaluation system shall be used for all jobs. lte wmmittee will reprt during the term of this Pgreement to the parties. Any disputes which may arise between the parties in this regard shall be referred to an arbitrator jointly aminted by the parties to deal with such E.SLES. -5- The core of the objection advanced by Mr. Moran, the employer's counsel,. was that the grievors are not-really compla’ining about an improper classification, but against wages agreed to be payable in respect of that'classification. The employer, he said, had exercised its exclusive right under what is now Section 18(l) of the Act to set up a classification system and assign duties to the appropriate job,titles. The Union's right was to negotiate acceot- able rates for each classification, which had been dohe. .&are, however, the Union was attempting to move one classification::.to / i a different level by way of the grievance procedure and reco*Jrse to arbitration. Mr. Moran submitted it is not the function of this Board to restructure a classification system~established by the employer, and this had been made clear in previous.decisions. He referred to the followings cases. ., s Lvnch 43/77 (Adams) was a case in which the grieVOr, classified as a Clerical Stenographer 3 in the, Belleville Psych- iatric Hospital, had ‘sought reclassification as ~a Clerical Stenog- rapher 4. At pages 4 and 5 of the decision, it was said: 'In cases of this kind the Board F$ limited to an assessment of what the griever. does against 1) the relevant .class standards, and/or 2) the duiies- performed by aome'other employee whose position has been iixluded in a m&e senior cllssification. While a bargatn- ing agent, once granted representative rights, may bargain with respect to the classification and job evaluation system to be employed by an employer, it is the exclusive function of the employer actually, .to classify position. bier section 17(2)(a) of The Crown Employees Collective Bargaining Act employees are’given the right to - 6 - challenge the propriety of the resulting allocation of their position :o one classification as opposed to another. However the board has said on a number of occasions that a grievance filed under this ore- vision cannot challenge the classification system itself or the pay assigned to a Job once claseifled. -Rather the question before tbs Soard is simply whether the classification system in use vas properly applied to the position of the griever. In Edwards and Noloney 11/78 (Swinton) several employees classified.Welfare Field Worker 1 had sought reclassification as Welfare Field Worker 2. At page 3 of the decision, (citing Rounding 18/75 and Lynch, &~p&~l it was said: In classification grievances, this Board is confined to hearing the grievance of an employee that his job has been im- properly classified; that is, that the classification system in use has been improperly applied to his job. In deciding these grievances, the Beard looks to two questions: (1) whether the position, measured against the relevant class standards, is appropriately classified; and (2)‘whather an employee performing the same duties as the griever is included in a more senior - classification. In Pretty 64177 (Swinton) similar statements were made, together with the following sentences.: This bard can only look to whether a particular job l-as been been properly classified. Any dispute as to the classification system used or the rates of pay attached to a particular class- ification must’ be resolved throgh the collective bargaining process. The majority decision in Wheeler 166/7g (Swintonl held that the griever’s position as a Clerk 2, Supply, could not be - 7 - reclassified on the basis of the annual stock turnover value of stores in a correctional institution where he worked. .At page .6 it was said: In effect, the~grievor is askirq this Ecard to redraft the classification system, a task which is clearly beyond our jurisdiction. The grievor must show that his job properly fits within the class standard of the higher classification or he must show that an employee doing the same work is within the higher classification. -- ,Mr. Moran also made reference to the early cases of Rounding la/75 and Thomnson l/76, both authored by Professor Beatty. -. .Mr. Mor.an conceded, however, that the grievances might be arbitrable if ,"significant change" c.ould be shown. He was referring of course to the expression "unless the work changes significantly" In Article 18(2)i(a) of the collective agreement or the proviso "when a classification is eliminated or substantially changed....." in 18(2) i(c), which have been.quoted above. Mr. Jones, the grievers' representative,,denied that the grievance constituted an attack,.on the employer's classification system. Instead, the grievors were seeking to show that there had been "an improper allocation of points within the system itself." Mr. Jones' submissions were.twofold.- : -a - First, he was relying on the provision in Article 13!2) iId) that "every employee covered by this Agreement shall be classified under a salary grade or level, job title and/or job ,description appropriate to the occupation in which he is~ regularly employed....." A violation of that obligation would be grievable and arbitrable under Article 2 of the agreement. Second, Mr. Jones pointed out that the cases cited by Mr. Moran were decided on the context of standards established for positions in the Public Service. The Workmen's Compensation 3oard had a different system --- a "point system" --- embodied in its Job Evaluation !anual,Exhibits 3 and 4, applicable to Clerical and Administrative Positions, and issued by the Personnel Department in November, 1966. In the scale of point values, Exhibit 4, salary grade 7 was shown to fall within the range of 241 to 270, while salary grade 5 was from 306 to 335 points. The ranges, Mr. Jones said; are not being challenged, but if it could be shown that points had not been correclty awarded to the position of Telephone Enquiry Clerk under the various factors recognized in the Manual, there would be proof of a violation of the obligation agreed to by the employer. ;. Mr. Jones argued that when a mistake has been made by -9- the employer --- in this case the Workmen's Compensation Board --- in "applying its own system," there is no need to establish -thaz there's been a change in the system. The grievances, he said, were not really based on alleged change, even though the grievance quoted above had mentioned "signi~ficant change.'" Mr. Jones said: "We are not grieving under 18(21i(c)." We was referring to the provision that an employee may grieve "when a classification is eliminated or substantially changed." ~" "Appropriate" is the key word in Article 18(2)i(a), according to Mr. Jones. The obligation to award an'appropriate classification was renewed with e-very agreement; there was no need to negotiate changes. Thus the next paragraph (providing that "employees shall remain so classified for~the duration of this Agreement",) was not relevant, and did not relieve the employer of its continuing responsibility to award the "appropriate" classifi- cation,, whether or not there was any significant or substantial change in the duties attached to the position. .' Mr. Jones said that the only previous classification case involving the Workmen's Compensation Board was Bethune lo/l7 (Adams). He referred also to Hooper 47/7? (Swan) and Beaton 221178 (Jolliffe), suggesting that one false step in the classification process can negative the result. . Finally, Mr. Jcnes oosed the seccnd quesricn (which he d:d net ccnsider vitali nameiy: is the 'Jnicn required 5.t ihcw "sl-nlilza:: ,3 change" befcre an i mproper ciassificaticn can be revrewed? - 10 - The argument to this pcint having arisen frcm Yr. ?lcran's challenge to jurisdiction, he had a right to repLy. 12 SC dc:rig, he emphasized that under the sr~ovisicns of Article la in the ccllective agreement, the Unicn had,agreed to be bcund by Scheduie "A" thereto. What the Unicn was <attempting here, he said, amcunted to asking this Board to amend Schedule "A." The whcle exercise, he suggested, was a "rcundabout way" cf changing the classificaticn system. He denied that the Employer had any duty to reclassify each time a new agreement is made. he said it was not required by Article 18: any classification "should stand until shcwn tc be . . wrong. 0' The Employer's obligation was to perfcrm its :cle In gCCd faith. The word " appropriate," as used in Article 18, meant "appropriate in accordance with Schedule 'A'" and there was no jurisdiction to decide wha t might be appropriate outside the frame- work of Schedule "A." Before giving reasons for our decision, one issue requires clarification. It was alleged in the grievance that "there have been significant ctianges to warrant reclassificaticn." Fu:ther, It is 1 - 11 - expressly provided in paragraph (c) of Article 18.2.i that -he employee affected may grikve and go to,arbitraticn if his class- ificationhas been "substantially changed"and if he believes him- self to be incorrectly ciassified; However, it~was stated on Sehalf of the grievors that they are not'grieving under that paragraph, and they do net consider it is necessary to show "substantial changes." The substance of the grievance reall,y is that the positicns cf those known as #'Telephone Enquiry Clerk 2," had been and were i~mprcperly classified.in April, 1978, when'.Ws.~Haffenden' presented the griev- ance quoted at. the outset of this,'decision. The, applicable agree- ment had been made in-respect of the period from .October 1, 1977. to September 30, 1978. We.understand. the language of the grievance to mean that the griever belie$ed her @osition,improper'ly classified, a reason being that (according to her) there had been'the "signifi- cant changes"' ref~erred to.i.n Article 18.2.i. This%s not the same thing as relying on the paragraph (c) referred to above. ..We do not find it 'necessary to discuss-the distinction, if any, between "significant. changes--and-the words .!'substantially changed" in paragraph (cl. This decision must be limited to the two issues I which the representatives oftheparties agreed should be resolved, both of which-i-elite to Article'~18.2.i. - ' _~ The problem here is not free~from'difficulty. .Fcr that reason,. the.argument; advanced by Mr. Mo'ran and Mr..Jones have been set out in some deteil. In-our view, the logic of the former rests .., .’ i - 12 - on Article la in the ccllective agreemeEt, while the lcqic cf l-.k:e latter is based on Sections 13(2) and i9 of the Crcwn Zmpicyees Collective Bargaining Act. If the parties' arzjuments are sreil- founded, there appears to be some inconsistency between the orcvis- icns =f the agreement and these of the scdtcte. Thus, Xr. Yoran has relied !?eavily o:! twc passages in Article 19. The first (underlined by the writer) is the prevision in 18.1 that "the Emplcyer shall pay salaries in acccrdance xi-h Schedule A attached hereto and fcrming nart cf this Agreement." In Schedule A cf course, the list of "Classificaticns in the Clerical and Administrative Salary Scale" includes "Telephone Znquiry Clerk. 2" with a Salary Grade of 7 (under the fcrmer system) and 005 under the new system. (Ms. Haffenden was referring to the former system when she asked that her Grade "07" positicn be re-classified Grade "05 . '0 1 Incidentally, Schedule A opens with the words "The Emolcyer shall pay salaries in accordance with this Schedule and this Schedule shall apply to all emoloyees in the classificaticns listed herein." The second passage relied on by Mr. Moran is 18.2.i, headed "Classification of Employees," which has already been quoted in full. It includes words to the effect that all classificaticns shall be "in accordance with Schedule 'A' of this Agreement." It also contains the provision that employees are tc remain "so class- ified . .._. unless the work changes significantly....." . - 13 - In brief, Mr. Moran's argument suggests that'zhe oarries voluntarily agreed on October 1, 1977, tc "freeze" all classi.ficarisns listed in Schedule A fcr the duration of their agreement. It wculd follow logically (although Mr. Moran did not go quite that far) " tnat no classification on the list could be challenged --- at least net "unless the work chan,qes significantly." If that theory is well- founded, a position improperly classified in the first place could not be questioned if the work remained the same. The cnly recourse would be to seek revision of Schedule A in 'the next'round cf negotiations; This is implied in Mr. Moran's argument that this Board has no jurisdiction "to amknd'Schedule A." _ In our view, there is no question here of amending Schedule A. It was a negotiated provision fixing a scale of salaries. Since different salaries arepaid for different jobs; it was necessary to set out therein a list of classifications. It was agreed that i salaries should be paid in accordance with thattscale'and in respect of the classifications listed.. / It wa; not, however; agreed that the classifications themselves we're'immutable forever;. or were to L .~ be exempt from the express'provision in Sections'lS(2.J' land. 19 of the ;1 Crown Employees Collective Bargaining Act giving any em'ployee the .~ .I right to grieve "that his position has been improperly classified" and the right to resort to arbitration. L J.'.,~ ,., ., Moreover, even if the' parties had deliberately agreed - i-l - that an employee could not challenge a classifizaticn l:sted :n Schedule A, we doubt that such a przslision could prevail c',er ?he rlqhts confered on the emplcyee by the statute. It is ncr cpen to the parties tc re-write or amend an enactment by the Legislature. Ficwever, cn our reading of the collective agreement, we do net r?z~:k the parties attempted to bar the right tc grieve aqainsr a cLass:fi- cation. On the contrary, it was contemplated by Ariticie la cf -he agreement that a classificaticn could be revised if "the wcrk changes significantly" or if "substantially changed." It is true that the "point system" cf classification, at the Workmen's Compensation Beard" is net the same as the "standards system" in effect for bargaining unit employees within varicus Ministries. For the purposes of this case, however, there is nc difference in principle. The employer's responsibility is tc establish the system. Once established, an emplcyee's right to challenge a classification is limited in that he may net chalienge the system itself but is entitled to prove --- if he can --- that his pcsition has been improperly classified under the criteria recognized by that system. In the light of that principle, it be- ccmes irrelevant to point out that the employee's bargaining agent has agreed to the salary scale governing all classificaticns. Thus, previous stateqents by this to the W.C.8. as they are to any Ministry. 6oard are as applicable Some cf them have been - 15 - cited by counsel for the Employer. Perhaps the mcst ccgent explanation was given by Professor Swinton in 3dwards ar,d 'lalszey - 11/78. Althcugh already quoted., it bears repetition, with the key words underlined: In classification grievances, this Card is ccnfined tc hearing the grievance of an employee that his jcb has been im- . properly classified; that is,, that the olassificaticn system in ,use has been improperly applied to his jcb. In deciding these grievances, .the Ecard looks to two questicns: (1) whether, ( the position, measured against the relevant class standards, is 'appropriately classified; and 12) tiether an emplcyee perfsrming the same duties as the griever is included in a mere senicr classification. I * In this case, .instead of the words "measured against the relevant class standards,? the appropriate language would be: "measured ~against the criteria for awarding points defined in the Employer's Job Evaluation' Manual." For the above reasons we conclude that the grievances cf Ms. Haffenden and others are arbitrable: in other words, this board has jurisdiction. ^. '?he second issue we have been asked to decide is "whether the union representing the grievors is required to show significant change in the,work assigned'to the position.". An affirmative answer to this question would imply that no grieva~nce c,an succeed unless significant change is shown, i.e. that a grievance cannct ! .:: : ; ,I - 16 - succeed if the pcsition invclved 'was imprcper?:, classified in -he first place, but has had no significant changes. in t;he iighr cf the foregoing conclusion as PC arbitrability, the aff:r.mative answer is not possible. Sxhibit 4 in this ease is rhe Smpicyer's Zcb SvaluaricJ? Manual for Clerical and Administrative Pcsiticns. it Sets Out the Range of Points attached to each Salary Grade from Grade 10 tc Grade 3 in the aid system, i.e. from Grade 002 to Grade 909 under the new system. it then defines, in ccnsiderable detail, 12 iacccrs to be utilized in fixing total points applicable to a positicn. Within each factor are a number of ccmpcnents, each one cf which is given a degree and the points thcught to be apprcpriate. ?CX- example, the first factor is "Zducation," within which the first compcnent is "completion of Grade VIII or equivalent," with Degree 1 and 14 points; on the other hand the tenth ccmponent (or possible component) is "Ph.D. or M.D." with Degree 10 and 98 points. The factors are the follcwing: I Education. 10 components having points from 14 to 96. II Experience, 7 ccmponents and points frcm 22 to 1'34 III Judgment, Initiative, Complexity, 9 compcnents, 14 tc 126 points. IV Wental-Visual Demand, 8 components, 5 to 40 pcints. V Physical Demand, 5 components, frcm 10 to Si) pcints. VI (a) Respcnsrbiliry fee Error, 7 components, frcm 5 tc 45 points. . - 17 - . ..’ ‘. VI (b) Responsibility for Equipment or Machinery (which, however, is "to be used in rating mainCenance persz:.r?el Unly"),--- an interesting statement, since the system is supposed to rate jobs or positions, net personnel. VII Responsibility for Contacts, 6 components, 10 to 60 pcints. VIII Responsibility for Supervision, 9 ccmpcnents, frcm 5 to 45 points. IX Number Supervised, 9 ccmponents, 5 to 45 points. X working Conditions, 3 components, 10 to 30 points. XI Unavcidable'Haiards, 3 components, 5 to 15 points. XII Responsibility,for Safety of others, 3 ccmponents,.j tc 15 points. A description is given each and every ccmponent, scmetimes : ,I‘ in one sentence, more often in several sentences. An attempt has been made to be precise --- not always with success. This is~ acknowledged in the Foreword to the Manual, which is: In applying the factor descriptions in this'tcoklet .td evaluate a position, it should be rememberedthat it is not practical to attempt to describe factors that specifically refer to every pxiticn in the Bard's Clerical and Administrative Salary Range. With the large number of jobs we have, it is necessary to generaliie. You are, therefore, cautioned to not always interpret the faCtGr descriptions literally. Also, keep-in mind that all the descriptive phrases in each factor degree may not, and irxde&%ed not, apply to the job being evaluated for it~to fall in thatdegree: Objectivity is of prime impxtance. Although scmetimes hard to do, we must remember to think in terms of the job,'not the perscn presently doing the job. The caution given above was appropriate. On scrutinizing the numerous descr,iptions given throughout,.the Manual, it becomes - 18 - clear that it would not always be easy to match a particular pcs;ti:n with the desc ripticn given and thus to the applicable degree and pcints. 'This is not to say that errors were made: we mere::/ reczg- nize that pcssibility. Regardless and quite apart from any "significant changes," it was possible in the first piace to class;l:l a pcsiticn wr0ngi.y by placing it wirh the wrong degree and thus with the wrong number of points in respect cf one cr more ccnocnents. Errors of this kind could produce an inccrrect tctal number of ocincs, which might --- or mightnct--- put the pcsitricn in a higher --- or perhaps lower --- range. The "points, range” for Grade 007 (new system) claimed by MS. Haffenden , is 306-335. The range for Grade 005, her present grade under the new system, is 241-270. The range for Grade 006 (new system) is 271-305. If a ~"significant" change in duties were shown, that cf course would have to be taken into account. It might or might net be sufficient to invalidate the original calculation of total pcints. However, our opinion is that apart frcm any change, if an emplcyee can prove the original point rating was tot lcw acccrding to the ccrrect application of the Employer's Job Rvaluaticn Manual, then such an employee would be entitled to the apprcpriate remedy. The answer to the second question must therefcre be ? I I 0 ._ - 19 - negative; i.e. it is not necessary for an employee to demonstrate significant change as a precondition to review'of the original classification. It remains true of course that the onus is on the grievors and their union to establish that the position of Telephone.Enquiry Clerk 2 has been improperly classified. This would require detailed review of the points awarded,~factor by factor and component by component, which in turn calls for evidence in respect of each point rating challenged. There is no need for evidence in .respect of ratings with which the employees agree. To~'proceed with these grievances would be futile unless the Union-and the employees are prepared to tender the kind of evidence referred to above. In all fairness, the Union shculd give particulars in writing to the Registrar -of this Board, and also to couns&l for tb& Employer and to Mr. J.M. Shields of the W.C.B. These -pa~rt-Tculars should specify each and every rating in each and every factor of the Manual alleged by the employees to be incorrect. Those not specified wili be assumed correct. The particular,s should be filed as soon as possible. On request, a further hearing will be arranged, but not earlier than one month after rec.eipt of the particulars. ia?ED a: Toronto the l.lt:? ?.a:~ of Jll>e, 1382. E. 6. Zoiliffee, 2 r IL. - ';ice Cha:san "I c'oncx" A. G. Stapleton - Xezber " concnr" X. G. Natters - >!e?ber