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HomeMy WebLinkAbout1985-1563.Boner et al.88-03-08IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before: OPSEU (Boner et al) and The Crown in Right of Ontario (Ministry of Transportation and Communications) D.H. Kates Vice Chairman P. Camp Member F. Taylor Member For the Griever: E. Shilton-Lennon COUlW21 Cavalluzzo, Hayes and Lennon Barristers & SoliciEors For the Employer: M. Failes COUllSel Winkler, Filion and Wakely Barristers & Solicitors Griever Employer Hearing: October 15, 1987 -I- Decision In this casenine grievances dated in December, 1986, were referred to arbitration wherein the incumbent Property Agents 2 located at the Ministry's Kingston Region have requested reclassification to the Real Estate Officer I position. There i&no dispute that the Ministry has since reclassified the grievers to the Real Estate Officer I position effective June 1, 1986. What remains to be decided in th~ese grievances' is ~uhether the grievers were entitled. to be reclassified retroactively to September 27, 1985 and whether in any event they were entitled to interest for the period since they were improperly classified. The employer has 'contested the arbitrability of the nine grievances. The employer submitted that these grievances were "settled“ on or about January 6,1987. If settled, then there was no argument that this Board would be foreclosed from entertaining the merits of the grievers' outstanding complaints. The facts that were adduced to support the emp~loyer's preliminary jurisdictional challenge should be summarized. The Ministry administers the services provided by its Property Age~nts 2 and Real Estate Officers I on a regional basis. The decentralized administration of these aervioee also applies to the resolution and disposition of employee oomplaints and grievances.. Thus the Regional Director is authorized as the Deputy Minister's designee for the purpose of resolving and - 2.- settling grievances in the particular region over which supervision is exercised. It is common ground that in October,1986 approximately ten Property Agents 2 in the Central Region flied grievances requesting reclassification as Real Estate Officers I. In due- course Mr. B. Riddell, Regional Director, acceded to the grievers' complaints and. agreed to reclassify their positions aa requested effective September 21, 1986. Those grievances were thereby resolved and "settled." Arising out of that settlement employees in other regions administered by the Ministry filed grievances requesting like reclassification from.Property Agents 2 to the Real Ratate Officer I classification. It is common ground that the Property Agents 2 in each region performed substantially the same duties and responsibilities as those perfoimed by Property Agents 2 in the- Central Region. Moreover, their job specifications (ie job descriptions) reflect the similarity of those dutiea.and responsibilities. The nine grievances filed by-each Property Agent 2 from tihe Kingston Region simply reflected their desire to be treated alike for pay purposes relative to their colleagues in the Central Region. It is fair to say, havina regard to the candour.of Mr. K. Cribbie, Staff Relational Advisor, that the Ministry viewed Mr. Riddell's decision settling the grievances emanating from the Property Agents in the Central~Region as a mistake. As a result the employer tried to correct that mistake by "reallocating" -3- downwards employees occupying the Real Estate Officer I classification to Property Agent 2. The Property Agents 2 who had hitherto been reclassified as Real Estate Officers I were "red circled" for pay purposes. The grievers' grievances requesting in effect "equal treatment" for pay purposes were a\ccordingly denied. This prompted the trade union to file a complaint under 532 of The Crown Employees Collective Bargaining Act alleging the ccmmittal of an unfair labour practice by virtue of the prejudice endured by the Property Agents 2 in exercising a right under that Act (namely, an employee's right to grieve his or her allegedly improper classification under Section 18(2)(a) of the Act), In an effort to resolve the complaint the Grievance Sett~lement Board appointed Mr. R.D. Joyce as Investigator to mediate the dispute. It is common ground that not only did Mr. Joyce attempt to resolve the~trade union's "unfair labour practice" complaint but also all of the outstanding classification grievances that were initiated by the Minietry'e Property Agents 2. Mr. Joyce's efforts to effect a settlement of all outstanding matters were apparently successful. On January 6, 1987 Mr. Cribbie was advised that a settlement had been achieved and proceeded to reduce to writing the terms Of settlement. Included in the terms of settlement was the permanent reclassification of all Property Agents 2 in each of the Ministry's Regions as Real Estate Officers I effective June I, 1986.~ And, of course that provision was intended to effect the withdrawal of both the unfair labour practice complaint and -4- the outstanding classification grievances. The written agreement dated January 7, 1987 drafted by the Ministry reads in part as follows: The parties hereto agree to a. full and final settlement of all outstanding grievances submitted by employees in the classifications Property Agent 2.and Real Estate Officer I on the following terms: 3. The actions of the Employer in reclassifying the Real Estate Officer 1 positions to Property Agent 2 on March 3, 1986, was based on the view that the Property Agent classification should be the working level and not for the purpose of intimidating the Union or 'any of the affected employees. 4. Employees listed inAppendix "A" will be reclassified to Real Estate Officer 1 retroactive to March 3,1986. 5. Employees listed iwAppendix"B" will be reclassified to Real Estate Officer 1 retroactive to December 1,1988. 6. The Union will notify the Grievance Settlement Board that the following grievances have been withdrawn: 149/86, 151/86, 158/86, 246 through 251/86, 1222 through 1224/85, 388/86, 1554 through1560/85 and all other classification \ grievances related to the Property Agent 2 and Real Estate Officer 1 clessifications. Neither the trade union nor the affected aggrieved employees signed the above draft. And it suffices to say for our purposes that the grievers from the Kingston Region wanted no part of the above terms of settlement. They insisted that :t.he compensation for their upward reclassification should take effect retroactively from September 27, 1985 (the original settlement date of the Property Agent+ 2 located in the Central Region); and, moreover, that interest should be payable from that date. At this juncture it may serve a useful purpose to describe the parLies procedure in effecting a settlement of employee c grievances. Mr. Cribbie indicated that after the Ministry secures agreement from the trade union with.respect to the terms ;’ \ of settlement of a grievance it undertakes the responsibility of drafting ~the written document. Nevertheless, it usually does not proceed to the drafting stage unless it has received assurance from the trade union that the aggrieved employees have consented : tti the terms of settlement. And, indeed, once drafted the Ministry also insists8 that not only the trade union representative sign the.agreement but the aggrieved employees as well; Indeed, the Ministry will not "implement" the terms of settlemeni until the aggrieved employees' ,signatures have been obtained. Accordingly, once the Investigator advised of the settlement the Ministry "assumed" that the aggrieved employees concurred in its terms. On or about February ~23, 1986, the, Ministry was made aware that the Property Agents 2 in Kingston refused to endorse the terms of settlement. At that time the grievers forwarded to the Ministry's representatives terms of settlement that they would have been prepared to accept. ' That counterproposal was not acceptable to the Ministry. The trade union representative (Nancy Coughlan)~after investigating the situations confirmed that the grievers in the Kingston region were not agreeable to the draft terms of settlement and the&by concluded that there . w*s no agreement. It suffices to say that bbth the Ministry and the trade union embarked'upon further negotiations to resolve the dispute. It is common ground that these negotiations culminated in,a second qettlement which was reduced to writing ori April 29, 1987. Several changes were made in that &reement that differed - 6 - dramatically from the.firat draft agreement. The most significant change (for purposes of this proceeding) pertained to the grievances emanating from the Kingston Region. That is to say, thosenine grievers were purportedly unaffected by the second memorandum of settlement. The relevant portion reads as follows: The parties hereto agree to a full and final settleme,nt of all outstanding claaaification grievances submitted by employees in the classifications Property Agent 2 and Real Estate Officer 1, except as noted in'paragraph 5 below, on the following terms: 5. The Union wills notify the Grievance Settlement.Board that the following grievances have been withdrawn: 149/86, 157/86, 1222 through 1224/85, 388/86, 1554 through 1560/85 and all other classification grievances related to the Property A'gent 2 and Real Estate Officer 1 classificationa except the grievances' of the following: H;L. Bonner J.C. Jones W.M.' Patterson W.H. Campbell B. Lucas J.M. Thomson D.C.,Gray W;J. McCoppen J.P. Thuot The second term of settlement agreementwas not implemented, in accordance with, Ministry practice, until each aggrieved employee (save the Kingston group) pended their signatures along with the trade union representative to the written document. Indeed Mr. Cribbie wrote the trade union with respect to "the receipt of the signed settlement" as follows: June 30, 1987 MS. Joanne Miko Grievance Officer Ontario Public Service Employees Union 1901 Yonge Street Toronto, Ontario M4S 225 Property Agent Grievance - 7 - Thie will confirm our telephone conversation of June 30, 1987 wherein. I advised you that upon receipt of the signed settlement, I will request our regional personnel offices to initiate the paper work necessary to effect the reclassifications of the Property Agents 2 to Real Estate Officers 1. This will also confirm that the settlement will not be delayed by the absence of signatures from former'employeee. These grievances will be consolidated and dealt with at one hearing. Similarly, the Kingston grievances will be dealt with at a separate hearing. It will remain the responsibility of the Union to, notify the Grievance Settlement Board of the grievances~which have been withdrawn and those which are to be scheduled. Also, the Union will notify the Public Service Labour Relations Tribunal that the complaint has been withdrawn. Yours truly, "K.B. Cribbie" emphasis added It is accurate to say that at no time during the parties' negotiations of the second settlement document did the Ministry advise the trade union that it still intended to treat the first i settlement as binding up& the trade union generally and the @ Kingston grievers particularly. Indeed, at no time was it suggested by~Mr. Cribbie that the arbitrability of the Kingston grievances pursuant to paragraph 5 of the second memorandum of settlement was to be subject to challenge by reason of the initial settlement. The trade union only was made aware of this jurisdictional issue at a pre-hearing-arbitral meeting conducted under the auspices of the Grievance Settlement Board. As hithertd indicated the Ministry has submitted that the nine grievances filed by the Kingston Property Agents 2 were (I'; inarbitrnble .becauae they had hitherto been settled by the Investigator. Indeed, the date of the settlement of those (,,:;y . . il -8- grievances is said to have occurred on or about January 6, 1987, when the Ministry .was informed that the Investigator's .efforta had been successful. Accordingly, anything that occurred thereafter was simply a redundant exercise serving no substantive purpose. The Ministtiy's counsel characterized the employer's efforts thereafter in negotiating a aecond,aettlement document as a precautionary measure entered into in order to .minimiee the effects of any adverse decision of this Board should it later hold that the first settlement Gas neither "final" nor "binding". And, indeed, we have not been convinced that any such "final and binding" initial settlement was achieved by either the Investigator or the parties. 1n support thereof we rely principally on the Ministry's own evidence of the parties' practice in regard to effecting a .aettlement of employee grievances under the subsisting collective agreement. It is our view that that practice requires the concurrence of the aggrieved employees as indicated by their signatures on the settlement document aa a fundamental condition for the implementation of the terms of settlement. In other words, the terms of settlement reached between the parties are not made effective until expressly ratified'in writing~by the affected employees. And, as in.this case, until such assurances are secured in writing substantial modifications or ahanges in the draft settlement document may occur that may depart dramatically from the original understandings. The reason the i. ’ parties take such precautions appears obvious. -9- In reapeot to classification grievances particularly Se&ion 18.02(a) of the Act Aharacteriees those complaints es employee grievances. In other words, the trade union does not hold ownership of these grievances. The aggrieved employees do. Consequently, it is not only in the trade union's interests to secure the aggrieved employee's express written ooncurrenoe to the terms of settlement but in the Ministry's interests as well. That is to sey, it serves absolutely no useful purpose to effect a settlement betweenthe employer end trade union where the principel parties .to the grievance dispute have not concurred in or ere seen to have concured in the settlement result. This is not to say that the trade union in certain circumstances will'not be bound by the settlement it negotiate; on behalf of its membera. And, indeed, the arbitral oases referred to thia Board by the employer in ,ita brief demonstrated that a trade union representative may be held accountable (by virtue of its ostensible authority to enter into such agreements) for the settlements it achieves irrespeotive'of its dissident membership (See Re: Continental Can Co. of Canade Ltd. (1975) 10 LAC (2d) 35 (Weatherill); Re Corporation of the Borough of Etobicoke (1982) 5 LAC (3d 52; Re Governing Council of University of Toronto (1974) 5 LAC (2d) 304 (Weatherill), But those arbitral cases simply do not reflect the practices for the resolution of grievances that have been followed by these parties. And it simply suffices for our purposes to refer specifically to the employer's 'own requirement that the, - 10 - aggrieved employees' ,signat.ures on the written settlement document be secured before implementation of its terms will beg made. We simply reject the employer's submissions that the second settlement document merely represented a contingent settlement to be applied in the ,event that the firat settlement proved ineffectual. If that were the case then it appears to us that the employer had to make that qualificationperfectly clear during its negotiations with the trade union ao that such an essential term would have been reduced to writing in the draft terms of settlement. To hold otherwise would compel this Board to ascribe to the Ministry ma1 fide6 in its dealings with the trade union representative that was not intended. That is to aey, we are quite satisfied that the raising of the arbitrability issue represented a belated strategy on the Ministry's pert that was not.reflected in the express written agreement holding the Kingston grievances apart from the written settlement. ,Indeed, the second settlement document refleats the parties true intention of salvaging whet agreement it could after the Kingston grievers expressed their rejection of the initial settlement document. For all the foregoing reasons we hold that the grievances referred to us ere arbitrible. The perties are agreed that prime facie "the twenty day rule" would normally apply in calculating the compensation payeble to the grievors *rising out of their successful claim for reclasaificetion. That is to say, compensation would normally be computed effective twenty days prior to the December - 11 - 1985, date the nine grievances were presented. And, the reason the trade union wishes to debart from that rule and to hold the employer accountable for thecalculation of compensation retroactively to September 25, 1985, is because that is the effective date upon which the Property Agent 2 classification grievances presented by employees in the Central Region were settled. At that time it was argued that the Ministry was made aware of the discrepancy or shortcoming in the Property Agents 2 status' for pay purposes in the Central Region and therefore should have taken like.and appropriate measures to correct the same discrepancy with respect to.Propertp Agents 2 at its other regions. Accordingly, it was submitted that the Ministry had unnecessarily delayed to the grievers' prejudice the inevitable correction in their claasificaiion for pay ptirpose to the Real Estate Officer 1 classification. Our simple ~reaponse to that argument is that if the employer should have known that the correction in the upward reclassification applied to the Property Agents 2 in tbe Central Region would inevitably have resulted in the same reclassification of the Property Agents 2 throughout the regions administered by the Ministry so too did the trade union. And it should therefore have fallen to the trade union at the time it advanced the grievances on behalf of the Property Agents 2 in the Central Region to have brought into the grievance process all other similarly affected employees. And, so to the extent the empldyer is alleged to have been derelict in failing to resolve the pay inequity applicable to the other Pr0peH.y Agents - 12 - so too was the trade union in not raising the issue et the time the Central Region grievances were resolved. In other words, insofar as there may have occurred an unwarranted delay in resolving the reclassification dispute effecting the Kingston grievers we hold the trade union just as blameworthy as the employer.~ Accordingly, we find no basis for awarding compensation retroactive to September 27, 1985 by reason of any undue delay engaged in by the employer. We hold an e,ntirely different opinion with respect to the grievers' entitlement to interest with respect to the amount payable as compensation. No party questioned the Board's jurisdiction to award interest (see: Re The Queen in Right of Ontario end Ontario Public Service Employees Union et al. (1986) 57 OR (2d) 641 (DIV CT) et p. 649). Nonetheless, it was suggested by the employer, relying on Re OPSBU (Susan Peters et al) end Crown in Right o-f Ontario (Ministry of Health) 241/84 decision dated March 5, 1987 (Joliffe) that our ~discration ought to be limited in awarding interest to disciplinary cases where the employee's penalty et arbitration has been reversed or otherwine modified. The implication that the employer drew from the Peters Case suggested that the awarding of "interest" was inappropriate to successful classification grievances because the 'neces,sery "punitive" element was absent relative ,to the employer's alleged infraction. Accordingly, the arbitrator writes et p. 61: Counsel for the Union has requested the award of interest on the amounts. payable to the Crievora since November, 1982. We have given the request careful consideration. It is true that this Board has awarded interest where deemed. - 13 - appropriate in a number of disciplinary cases end'tbe,'.' Diviaionel Court has reoently upheld'the power to do so in .' R. v. O.P.S.E.U. end the Grievance Settlement Board (Tbibart et el) es yet unreported, applying Section 19 of the Crown Employees Collective Bargaining Act. This, however, is a classification case, not a disciplinary matter. It appears to us that in classifying the Grievers incorrectly the Employer was not proceeding in en arbitrary or discriminatory manner, but upon its understanding of the application end interpretation traditionally given to the clerical series standards. In these circumstances, end consistent with previous decisions of this Board, such as Goobie, supre, we are not persuaded that this ia a oese in which interest should be awarded; Nevertheless, if for any reason, payment is not made to any griever on or before May 1, 1987, the amount due shall beer interest thereafter et the cumulative rate of one per cent per month. With the utmost respect to the foregoing we are not of the view that the arbitrator in the Peter's Case has applied the appropriate test in resolving whether or not to exercise his discretion in fevour of awarding interest. It appears to us thet the.eppropriete standard to be applied in resolving to ewerd interest (es suggested et the hearing) is whether "the grievers will be made whole" ~for any losses they bave~incurred es a result of the employer's mistaken epplicetion or interpretation of the collective agreement. Moreover, the employer's aberration whether it arises et arbitration in the context of a disciplinary penalty thet has been reversed or modified and/or in the context of en adverse contractual ruling is of no consequence. Nor is it necessarily relevant in any decision to the awarding of interest whether the employer's breech of the collective agreement represented a bone fide mistake or otherwise. The significant questionto be asked in the exercise of the erbitretor's discretion to award interest is whether the eggrieved employees subject to their - 14 - responsibility to.mitigete have endured a financial prejudice es a result of the employer's mistake. In this regard the Board relies upon Re Pacific Western Airlines Ltd. end Canadian Airline Employees Association (1982) 7 LAC (3d) 340 (Larson) et P. 347: As for the claim for interest on all sums awarded, we are of the view thet the Air Canada case represents the state of the law in this respect on matters felling within federal jurisdiction. In that cese, the board, in following Re Polymer Corp. end Oil, Chemical k Atomic Workers Int'l Union, Locel 16-14 (1962), 33 D.L.R..(23d) 124, la L.A.C. (2d) 204n, (19621 S.C.R. ~338 sub no. Imbleau et al v. Leskin .et al.;62 C.L.L.C. pare. 15,406, held that the remedial authority inherent in arbitration boerds inoludee the power to award interestas damages. The board stated, end we agree, that en award of interest is not punitive. It is a simple application of the principle that a grievor is to be put back into the position that he/she would have been in had the termination not occurred.. An award of interest does not constitute a disrdgerd of the legitimacy of the issue between the pertiee. Rather. et least notionally during time that is required to process the disoute. the party who has breached the collective agreement. albeit that it has acted in good faith. has hed the use of money that it would not otherwise have had end the party who was wronged was deprived of it. In times of high inflatiouinterest must be regarded es.e significant factor of compensation without which restitution is impossible. emphasis added As a result we direct the employer to reclassify the grievers es Reel Estate Officers I effective twenty days prior to,the date of the presentation of their grievances and to pay them en appropriate amount in compensation, inclusive of interest, from that date to the date herein. We shell romein seized for the purpose of the implementation of this award. c Dat'd this 8th day of MARCH, 1988 : David H. Ketee /g&.3. Q-+p Member c w . Member.