Loading...
HomeMy WebLinkAbout1982-0013.Lowman.87-08-10ON%mO cm EupLO”EES GRIEVANCE SETTLEMENT BOARD 13/82 34182 x/a2 ,x/a2 IN THE MATTER OF AN ARBITRATION UNDER THE CROWN EWLOYEES COLLECTIVR BARGAINING ACT BEFORF. THE GRIEVANCE SETTLEMENT‘BOARD BETWEEN: Don G. Lowman Robert W. Moore Robert J. Tafe Brian A. Teasdale Grievers - And - i .' THE CROWN IN RIGHT OF ONTARIO .(Hinistry of Transportatiowand Communications) BEFORE: H. K. Saltman Vice-Chairman I. Freedman Member P. Coupey Member FOR THE GRIEVOR: C. Paliare Counsel . Gowling and Henderson Barristers and Solicitors FOR THE JXPLOYER: K; 8. Cribbie Senior Staff Relations Officer Human Resources Branch Ministry of Transportation and Cmmnunications HEARING: November 25, 1986 Rmplbyer I 2 The Grievors in this case, Lion G. Lowman, Robert W. Moore, Robert J. Tafe, Brian A. Teasdale, claimed that they were improperly classified. The Board heard the Grievors' claim and I dismissed the grievances by decision dated June 25, 1984. Subsequently, on April 22, 1985, the Board's decision was overturned by the Divisional Court and the matter was remitted to the Board for reconsideration. The specific claim was that the Grievors were improperly classified as Photogranunatists 4 and that they ought to be classified as Engineering Officers 3. Based on the Divisional Court decision, the Employer agreed to classify the Grievors as Engineering Officers 3 and to pay compensation from 20 days before the date of filing of the grievances (which occurred between September 25 and October 1, 1981'). The Union requests (1) that the Grievors be compensated from March, 1980 when they entered the bargaining unit: and (2) that interest be paid on all monies received. The Employer disagreed and so the matter was remitted to the Board for determination. The Grievors are employed as Remote Sensing Supervisors in the Ministry of Transportation and Communications. They were . . originally members of management but in March, 1980 became members of the bargaining unit. Well before 1980, the Grievors' * This date was incorrectly recorded in the earlier decision as October 21, 1981. 3 Supervisors made representations on their behalf to have their jobs reclassified upward. These efforts ,continued following the Grievors' entry into the bargaining’unit. The Grievors testified that they were aware of these efforts and that it was not until the summer of 1981 that they were advised that their claim for reclassification had been denied. Shortly thereafter,.the four grievances were filed. In these circumstances, the Grievors claimed.that they were entitled to be compensated from their date of entry into the bargaining unit or, in other words, that retroactive compensation not be limited to the time for filing.the grievances under the. collective agreement. The Grievers' submission, of course, recognizes the usual arbitral rule in the case of continuing grievances (which the parties.considered these,to be) that retroactive compensation is limited by the period of/time dur,ing which it is permissible to file a grievance: see Re OPSEU and Ministry of the Attorney-General, 71/76; Smith, 237/81 (Roberts); Re Union Gas Co. of Canada Ltd. and International Chemical Workers, Local 741 (1973), 2 L.A.C.(2d)45 (Weatherill): Re United Steelworkers' Local 7105, and Automatic Screw Machine Products Ltd. (1972), 23 L.A.C. 396 (Johnston~); Re United . Automobile Workers and National Auto Radiator Manufacturing Co. (1968), 18 L.A.C. 326 (Palmer). In this case, the collective agreement allows 20 days for filing a grievance (Arty. 27.2.1) and, therefore, in the norma~l course, compensation is limited to a period of 20 days prior to the date eon which the grievance was 4 actually filed. But the Grievors claimed that it would be is case. inequitable to apply the usual rule in th The matter of the Grievers' classification has been an issue since well before their entry into the bargaining unit. Various Supervisors supported their request for reclassification. After the Grievors came into the bargaining unit and raised the issue of their classification, they were advised that their Supervisors were making representations to have their jobs reclassified upward. It was only in the summer of 1981 that they were advised that there would be no change in classification. Shortly thereafter, the grievances were filed. The circumstances in this case are similar to those in the case of Hooper, 4?/97 (Swan), which also involved a claim for reclassification. In that case, before filing a formal grievance, the grievor complained to his supervisors about his classification. All of his supervisors gave tacit approval to his claim for reclassification. Nevertheless, the claim was denied by the classification officers of the Civil Service Commission, who were empowered to make the final decision. It was only when he was advised that his claim had been denied that . the grievor filed a formal grievance. In those circumstances, the Board decided that it would be inequitable to limit retroactivity to the time allowed for filing a grievance under the collective agreement because the grievor relied on his supervisors' representations in delaying the filing of a formal 5 grievance. As a result, the Board ordered relief retroactive to the date on which the grievor made~ his "complaint" known to management even though it was not in the form of a grievance. '. After referrlng~to the case of Re OPSEU and Ministry~of the Attorney-General, 71/76, in which the "usual" arbitral rule was followed, the Board states as follows at pp. 18-19: "With respect, this case does not limit recovery in every situation to the date of filing a formal grievance. Here the grievor had made his 'complaint' on or before September 1, 1975 in the form of a request for reclassification. His request apparently met with at least tacit approval from everyone concerned except the,classification officers of the Civil Service Commission, who alone were empowered to make the final decision. In such circumstances, it would have been premature for the grievor to file a formal grievance until it appeared that his request would be refused. Nevertheless, the evidence clearly establishes that the job content on which the present grievance is based existed before September 1, 1975 and that responsible officials of the Employer had received and were considering the grievorJs request by that date. As.none of the subsequent delay in decision-making can be laid to the griever,, he is entitled to be considered to be improperly classified as of September 1, 1975, and we so find." In our view, the circumstances in the instant case are not dissimilar from those in Hooper. -~The Grievors expressed dissatisfaction with their classificatio; to their respective Supervisors. Various Supervisors made representations on their behalf to have their classification changed. But the matter remained unresolved until the summer of 1981 when their requests for .reclassification were denied. In these circumstances, it 6 L, would be inequitable to limit retroactivity to the time period for filing a grievance as the Grievors relied on the efforts of their Supervisors. Even though there was no express representation that the classification would be changed, the matter was being actively pursued by members of management. As in Hooper, responsibility for the delay does not rest entirely with the Grievors. The Hooper decision has been followed by the Board in the case of Curnow and Ng, 635/04, 636/84 (Samuels) and was also referred to in Smith, supra. Given this line of jurisprudence developed by this Board, it is appropriate that the Grievors be compensated for the period of the delay but only since Harch 1, 1980 when they became members of the bargaining unit and entitled to pursue their claim. This is not to suggest that an employee who complains to a supervisor and even receives a sympathic response can ignore the time limits for filing a grievance under the collective agreement. The case at hand is an unusual one in which management became actively involved in the Grievers' claim and, by their efforts, kept the claim alive over a long period of time. It is only in these unique circumstances that the Board has recognized an exception to the usual arbitral rule limiting the period of . retroactive payment of compensation to the time for filing a grievance under the collective agreeme.nt. The second issue in this case involves a claim for interest. There was no dispute as to the Board's jurisdiction to , ; . 7 award interest, which is firmly established: see Re The Queen in right of Ontario (Ministry of Correctional Services) and Ontario Public Service Employees Union et al., December 18, 1986 (Ont. Div. Ct. (unreported)). In classification cases, however, the Board ,has held, where the employer has not acted in an arbitrary or discriminatory manner, that an award of interest is not appropriate: see Peters 241/84 (Jolliffe). In our view, the Peters decision is not manifestly wrong (although a different.view of the matter may be taken). It is our view that, in the absence of manifest error, one panel of the Board ought to follow the decision of another in appropriate circumstances. In this case, there was no evidence that the Employer acted in an arbitrary or discriminatory manner in refusing to reclassify the Grievors. Quite the contrary, their-claims were' dealt with exhaustively before being denied. These were similar circumstances to the Peters case in which the Board denied a claim for interest. Accordingly, a similar result ought to apply. In summary, the Board awards compensation to then Grievors at the rate of pay of Engineering Officer 3 retroactive to March 1, 1980, the date on which the Gr;ievors entered the bargaining unit. However, the request for interest.is denied. The Board will remain seized in the event that difficulties arise in the application of its award. DATED AT TORONTO, this 10th day of Aw-~s 1987. w- 1. Freedman P. Goc?ey Member