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HomeMy WebLinkAbout1982-0188.Brown.87-03-10Between: Before: For the Griever: IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Margaret Brown) - and - The Crown in Right of Ontario (The Ministry of the Attorney General) G. Brent, Vice-Chairman F. Taylor, Member P.C. Camp, Member T. Hadwen Counsel Cav~lluzzo, Hayes and Lennon Barristers and Solicitors For the Employer: D. Brown, Q.C. Counsel Ministry of the Attorney General Hearing: November 18, 1985 November 20, 198b Griever Employer DECISION The grievance in this matter (Ex. 13) is dated August 28, 1981. It alleges that the griever is improperly classified as a Clerk 5 General and asks that she be "reclassified as Administrative Module (AM-131 retroactive to April 1, 1981". There were no preliminary objections raised concerning the Jurisdiction of the board or the arbitrability of the grievance. By agreement.of the parties, this decision will deal only with the question of the second stage decision renderedby Mr. A.K.Chan as the Deputy Minister's designee. The parties further agreed that if the Board could give them an oral decision regarding the meaning and status of that decision, then they would be better able to assess their positions before proceeding further. This grievance has a long and somewhat complex history; for our purposes we will concentrate on the relevant events concerning the second stage of the grievance procedure. Following the rendering of what the griever regarded as fan unsatisfactory decision at stage one the matter was referred to stage two of the grievance procedure. At that stage the Deputy Minister or his designee must consider the grievance and render a decision, and Mr. Alan K. Chan, the Regional Personnel Administrator, in the Ministry's Personnel Management Branch was designated (see Ex. 17). A meeting was held on October 27, 1981, but was adjourned with the consent of both parties pending the completion of the griever's latest position description. The meeting was reconvened on February 22, 1982. At that meeting the griever was represented by Mr. I. Oram, a Union representative, and there were three representatives of the Ministry there. It would appear that at or before that meeting Mr. than had been informed that,the relief requested in the grievance was being amended to request reclassification to the Clerk 6 General classification. At the meeting the griever was questioned extensively about her duties and responsibilities. It would appear that both the yrievor and 'the Ministry were given the opportunity to make representations to Mr. Chan. A few days later the griever received a telephone call from Mr. Chan informing her that the decision was favourable and that a letter would follow. She then received the following letter (Ex. 25) dated March 2, 1985: Dear Mrs. Brown: Pursuant to our meeting of Monday, February 22, 1982, I wish to advise you of my decision with respect to your grievance. This decision is based on the evaluation of evidence and arguments, and in perspective of your amended settlement requirement of Clerk 6, General as opposed to the original request stated in your grievance form dated August 28, 1981. I find that the evidence does not support the classification of your position as Clerk 6, General. Moreover, I am of opinion, that your position should be properly classifiable within the Management Compensation Plan. Accordingly, I am requesting your Personnel Officer by copy hereof to redescribe and reclassify your position in the proper M.C.P. format and level. I trust this decision to effect an equitable disposition of your grievance without undue delay. If, however, you are not satisfiedwithit, may I remind you that you should instruct your Representative to apply to the Grievance Settlement Board for a hearing within 15 days of the specified time limit for receiving this my decision. Yours very truly, (signed) Alan X. Chan Regional Personnel AdminiStratOr Deputy Minister's Designee This decision was acceptable~to the griever. Her only comment on 4 it was to write to Mr. than on March 5th asking him about retroactivity (EL 26). Her Union representative also wrote to Mr. Chan (Ex. 28) indicating that the disposition of the grievance was acceptable but pointed out that there were still two outstanding matters: the exact classification into which the griever would be placed and the retroactivity. The letter from the Union extends the time limits for the second stage response in order to allow the Employer the opportunity to deal with those two items. The matter was then referred to the Ministry's Human Resources Management Branch, and the followinglettar (Ex. 32) was sent to the griever on April 21, 1982 regarding her classification: Dear Mrs. Brown: This is further to my letter to Mr Ivor Oram, Staff Representative, O.P.S.E.U. dated March 19, 1982, of which you got a copy. The Branch has reviewed very carefully all the documentation associated with the description of your duties, correspondence relating to your grievance and have consulted with the staff Relations Division, Civil Service Commission on the appropriate status of the position. AS a result, we are confirming the Classification of Clerk 5, General, which in our opinion is the correct 'classification for the position. A copy of this decision is of course going toBr. Ivor oram. we appreciate the opportunity given by the waiving of the time limits at the second step of the grievance procedure, which allowed us to review the circumstances in such detail. Yours very truly (signed) (Miss) K. A. Grant, Deputy Director - Personnel. The collective agreement has the following relevant provisions in relation to the second stage of the grievance procedure: 27.3.2 If the grievance is not resolved under Stage One, the employee may submit the grievance to the Deputy Minister or his designee within seven (7) days of the date that he received the decision under stage One. In the event that no decision in writing is received in accordance with the specified time limits in Stage One, the qrievor may submit the grievance to the Deputy Minister or his desingee within seven (7) days of the date that the supervisor was required to give his decision in writing in accordance with stage One. 27.3.3 The Deputy Minister or his designee shall hold a meeting with the employee within fifteen (15) days of the receipt of the _) grievance and shall give the qrievor his decision in writing within seven (7) days of the meeting. 21.4 If the griever is not satisfied with the decision of the Deputy Minister or his designee or if he does not receive the decision within the specified time the qrievor may apply to the Grievance Settlement Board for a hearing of the grievance within fifteen (15) days of the date he received the decision or within fifteen (151 days of the specified time limit for receiving the decision. The Union's position, put at its simplest, was that there was a management decision made by a Person with authority to make the decision and that that decision was satisfactory tq the griever. It argued that the matter of whether the qrievor was improperly classified as a Clerk 5, General and should be classified in the M.C.P. was determined by Mr. than and that the only outstanding issues were the identification of the new classification and the retroactivity of the decision. It said that there is no reason why Mr. Ghan's decision had to be complete in all respects to be a decision. We were referred to Re Air Canadaa Canadian Air Line Employees Association (1980), 27 L.A.C.(Zd.) 4U5 (Weatherill) and= Vancouver General Hospital and British Columbia 6 Nurses’ Llnion (1985). 21 L.A.C.(3d) 275 (Hope). The Employer's position was that somewhere in the process Mr. Chan asked himself the wrong question and went astray. It pointed Out that at the time that grievance was before MT. Chan the existing Jurisprudence of this Board would have suggested that the Board lacked Jurisdiction to consider a remedy within the M.C.P. classification system. It said that the primary question before Mr. than was whether the griever should be properly classified as a Clerk 6 General and that once he determined that question he went beyond his jurisdiction to consider her status in an attempt to effect an equitable disposition of the grievance. Itsaidthatatmostitcan be saidthatMr.Chan found that the griever was improperly classified and then failed to ask the proper questions after that. The union submitted that Mr. Chan cannot make a jurisdictional an-or because his authority is to answer the real problem in an attempt to settle the grievance. It said thattheEmployer cannot attempt to back away from the decision made by Mr. Chan because by so doing it would undercut the right of grievers to receive and rely on a decision made by such senior management at second stage. After consideration of the matter the Board delivered the following oral decision to theparties, indicatingthatwritten reasons for the decision would follow: 1. The Board has no Jurisdiction to review Mr. Ghan's decision or to review his jurisdiction to make such a decision. 2. The Board has to accept Exhibit 25 at face value as a decision of the Deputy Minister's designee which was acceptable to the griever. 3. The decision was that she should be classified in the M.C.P. and the only questions remaining to be litigated are: (a) where in the M.C.P. will the griever be properly classified, and (b) retroactivity. FollOwing an ad]ournment the parties informed the Board that they were able to settle the two outstanding matters and that by the terms of the settlement the Board was to remain seized of the question of compensation should the parties be unable to agree on the amount. what follows, therefore, are the reasons for the oral decision relayed to the parties at the hearing. In all relevant particulars the Air Canada case is virtually identical to the case before us. There the collective agreement provided for a hearing before the company's Labour Relations Manager, at which both parties were to make representations and the Labour Relations Manager was to render a decision. There was a decision which found that there had been a violation of the collective agreement but denying all of the remedy sought by the union. The union referred the matter to arbitration and the parties asked the arbitrator to decide whether the company was bound by the decision of the Labour Relations Manager with tespect to the violation of the agreement. At pages 407 and 408 Mr. weatherill said: Article 15.06 provides that 'if a decision rendered at the step 3 level is not satisfactory' (and there are other qualifications not here material), the matter may be taken to arbitration pursuant to art. 17. Article 17 provides that 'Any dispute not settled' in the grievance procedure may be submittedtoarbitration. Intheinstantcase of course, the union contends that the ‘liability’ issue raised in the grievance has been settled, and that only the issue of consequential relief is submitted to arbitration. In my view, that contention is Correct. The 'chairman' of the third level meeting is not a I disinterested neutral, whose decision either party may 'appeal' to arbitration. Rather, he is an officer of the company at the level of corporate management and if his decision is to allow the .grievance then clearly, under the provisions of this collective agreement, the company is bound by such decision. The grievance procedure set out in this collective agreement is one in which the employee or the union may progress a matter to the next step, if is not satisfied with a decision. It is not contemplated that the company, if later 'not satisfied' with its own decision, may reconsider what it has decided by taking the matter to a higher level, or to arbitration. . . . . Of course the decision at the third level is not, as I have said, a 'settlement' except in an extended use of the term. It does, however, have the effect of a settlement, and it is binding. The issue to be decidedin the instant case, then, is whether or not the fact that there was a 'split decision' -- that the union was successfulonthe issue~of 'liability' but not on the issue of compensation -- means that when the union proceeds to arbitration on the compensation ,issue -- as it certa,inly may -- the liability issue is thereby revived? In my view it does not. Just as, as the cases cited above have shown, parties may settle some of the issues in a grievance leaving others to be determined at arbitration, so too, in the grievance procedure set out in this collective agreement, some isues in a grievance may be decided leavingotherstobe arbitrated. Thearbitration of the latter does not put the former back in question. The revival of all issues by the arbitration of some would be contrary to the scheme and the purpose of the grievance procedure, and could lead to very un,air pressure not to arbitrate in some cases. In our view the situation before us is one where an Employer representative has made a decision as he is required to do under the collective agreement Mr. Chan was not a decision maker, in the neutral third party sense, he was a designated representative of the Employer, one of the interested parties, who had to answer the grievance for the Employer at second step after conducting a hearing. This he did. If there is any issue regarding whether Mr. Ghan did the right or 9 the wrong thing or whether he exceeded his authority, that is a matter between the Employer and Mr. Char,. Insofar as the griever and the union are concerned, surely they are entitled to rely on his designation by the Deputy Minister as being S person who can make a reply, in the form of a decision, on behalf of the Employer at the second stage of the grievance procedure. I" our view Mr. Ghan's decison was not a quasi- Judicial one and we certainly cannot review his decision for any Jurisdictional error. As in the Air Canada case, there is no provision in the collective agreement before us which would allow the Employer to "appeal" the decision of the Deputy Minister or his designee. It is the Employer's answer to the grievance. It is not and perhaps cannot be made without prelu'dice. It is not a" offer of settlement which is contingent on giving up the right to grieve the question of what is the proper classification or giving up the claim to retroactivity. It does not purport to be a complete answer to the grievance because it clearly does not address retroactivity or the assignment~of a classification. I" our view the Employer gave a response to the grievance at second stage and must be bound by that response. The decision (Ex. 25) is clear. Implicit in the decision is the finding that the griever is improperly classified as a Clerk 5, General. That is precisely the finding that the Employer tried to raise again in April, 1982 and it cannot do that. The decision also was that the qrievor should be reclassified in the M.C.P. There is no doubt that that was acceptable to the griever. That is an end to that question, and the Employer cannot raise the matter again. It must be bound by its own decision. The collective agreement surely contemplates that the acceptance of the decision ends the matter and binds the parties. 10 As a consequence, the only issues which remained.outstanding after MT. Ghan's decision were the proper classification within the M.C.P. and the retroactivity of that reclassification We find that those are the only issues which could be properly placed before us. For all of the reasons set out above, therefore, we hereby confirm the oral decision given to the parties at the hearing on November 20, 1986. As we have already noted, the parties have settled the two outstanding issues, and we will r&main seized of the matter only for the purpose of assessing the amount of compensation should they be unable to do so themselves. DATED AT LONLXIN, ONTARIO THIS 10th DAY OF March , 1987. J3au. Gail Brent, Chairman .w 72 . F. Taylor, Member /zzJ.yl, Q-\t_ P.D. Camp, Member