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HomeMy WebLinkAbout1986-0462.Robbs et al and Allen et al.88-02-08IN THE MATTER OF AN ARBITRATION Under THE CROWN ENPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEKENT BOARD BeCWeen: Before: For rhe Grievor: For the Employer: Hearings: OPSEU (Robbs et al and Allen et al) Grievor- - and - The Crown.in Right of Ontario E”Lp~O,‘aF (Ministry of Transportarion) .R.L. Kennedy J. McManus G.J. Mitley Vice-Chairman Member Member Roman E. Stoykewych Counsel Cavalluzzo, Hayes and Lennon Barristers and Solicirors H.J. Laing Counsel Sanderson, Laing Barristers .and Solicitors October 28, 1987 December 23, I987 . -2 - DECISION This is a classification grievance involving 18 employees who work in the Employer's Financial Services Division at Kingston, Ontario. Fifteen of the Grievors are classified as Clerk 3 and three are classified.as Clerk 4. The grievances were all filed in late March or early April of 1986 and assert retroactivity entitlement to various dates. Four Grievors specify a retroactivity entitlement to dates in 1983, one to a . date in 1984, and the remainder to dates-in 1980. It was agreed by the parties that as a preliminary issue the Board should rule .' on the entitlement to retroactivity. We.were advised by counsel for the parties that the parties had put into effect an Office Administration Group Job Evaluation Plan that was considering the appropriate classification for these Grievors and that it was to -- have an effective date of December 31, 1985. Accordingly, it was agreed by the parties that there would be no point in proceeding to hear the merits of these grievances unless the Union could establish an entitlement to retroactive compensation to a.date prior to December 31, 1985. We were advised by counsel for the Union, and it was further apparent from the evidence, that in the eventthe matter proceeded on the merits, the Union evidence would have two thrusts. First, the Union would seek to show that the 3 - introduction of computerization in the late 1970's started an evolutionary process that continued until 1985 and resulted in an accretion of job functions that substantially altered the nature of the.work and rendered the existing classification improper. Second, the Union would show that other employees in the Ministry performing identical or substantially similar work were classified at a higher level. It would be the Employer's positioh that while computerization reduced the routine duties of the job, the actual content of the job was not changed. It was the view of the Employer's witnesses that it' was merely a change of tools to do the same job without any increase in job compl,exity. There isno question that under the provisions.of. Section 16(Z) of the Crown Emolovees Collective Baraainins Act R.S.O. 1980 c.108 the Grievors are entitled to grieve that their positions have been improperly classified and that such a complaint is to be processed in accordance with the grievance procedure provided in the collective agreement. The collective agreement between these parties outlines the grievance procedure in Article 27, and this Board has ruled repeatedly that the time limits agreed to by the parties are mandatory and that there is no jurisdiction in the Board to extend such time limits. The parties have agreed that these are continuing grievances, and in the case of a continuing grievance, this Board has traditional11 -4- granted relief to a successful grievor to a date that is 20 days prior to the date the grievance was actually filed. In this case, the Union urges us to depart from that rule and to award retroactivity to dates ranging from three years to six years prior to the grievance by reason of certain representations'of Management alleged by the Union to have been made to some of the Grievors, although not all of the Grievors, as a result of which the'Grievors did not pursue formal grievances. !lWo Union witnesses testified with respect to specific conversations with,members of Management that the Union all'eged made reference to reclassification. Beverly Dillabough, a Clerk 3, testified that in'early 1983 she began to feel that her classification was in error. At that time the Licencing arid Control Division of the Ministry came to Kingston from Toronto, and it was Ms. Dillabough's view that her job was far more involved than licencing and control jobs classified as Clerk 4. She stated that some time early in 1983 she spoke to Robert Didemus; the Manager of Administration;.and inthe course of casual conversation he indicated that he was going to Toronto to look into the reclassification of his clerks. Subsequentlyi in, the summer of 1984 Ms. Dillabough spoke to Beverly Etmanski, .dho at that time was -Head of Financial Services. It was Ms. Dillabough's evidence that Ms. Etmanski at that time expressed surprise that the clerks had not yet been reclassified. MS. -5- Etmanski had previously worked in Toronto, and it was ,Ms. Dillabough's evidence that Ms. Etmanski told her that when Mr. Didemus would come into their office in Toronto, he would rave .about the quality of his Eastern Division staff. As a result, when she moved to Kingston, she was surprised that they had not been reclassified. Ms. Dillabough stated tha~t she repeated the comments of Mr. Didemus and Ms; Etmanski to other employees in the office and that it was a matter of coffee time discussion. She,stated that she finally grieved in 1986 because after all that time nothing had been done, and throughout the period the . - employees were all under the~'assumption that something would be done. She stated that they were always being told that they were great clerks and that Mr. Did&& was trying to help them in Toronto. In cross-~examination she agreed,that Mr. Didemus had -=., never promised them that they would receive. a higher '. classification. The second Union witness to make reference to specific conversations with representatives of Management was the Grievor, Paul Robbs. He ~testified that he first believed they were misclassified in 1980 after the introduction of computerisation. In early 19BO he spoke to Bruce Sharp, Ms. Etmanski's predecesscr as Head of Financial Services, and he asked Mr. Sharp if~the position specification was going.to be upgraded. The response was that Management was working on it, and Mr. Sharp saw n0 -6- reason why it would not be. Subsequently; in 1982, Mr. Robbs approached Brian Weber, the Accounts Payable Supervisor, on the same issue, and the response again was that Mr. Weber saw no reason why the clerks would not be upgraded and that Management was working on it. Mr. Robbs testified that the job was evolving throughout the period 1980 to 1985 and that as a result, it would take that long,to get a proper job specification into~ final form. He was aware that a new job specification wbs prepared in 1985 pnd submitted for classification, and he stated that he grieved in March of 1986 because he was shocked and devastated to learn that the new position specification was going to come'back classified at the same level as the existing. In cross- examination Mr. Robbs agreed that he was familiar with the . classification system by reason of his ekrlier employment with the Ministry as a Personnel Officer and that he was aware that the authority to classify-jobs rests with the Ministry and not with his Supervisors or the members of Management with whom he had spoken. He further agreed that there was no question as to . the good faith of any of the Supervisors~,with whom he had dealt, and he stated that they were as unhappy as the Clerks with the result of the reclassification in 1986. None of the remaining Grievors had had any specific discussions about recla;sificatiOn with representatives Of Management, nor had any representations been made to them., -. -;- Rather, there existed a general understanding within the office that the matter was beinq.looked into and that the Supervisors saw no reason why the classification level would not be improved. It would appear that none of these other Grievors ever raised concerns about the classification of the jobs or expressed any dissatisfaction to Management. For the Employer, Ms. Etmanski specifically denied making the statement attributed to her by Ms. Dillabough, although sic did recall discussions with.Ms. Dillabough, 'wherein Ms. Dillabough made 'reference to job comparisons with Clerk positions .in the Licencinq and.Control Unit;' Ms. Etmanski testified that she told Ms; Dillabough that she would examine the job specifications and ensure'that they were accurate and current. Ms. Etmanski further indicated at that time that if the job specifications were not current, she would update them and have them re-evaluated. That she proceeded to do, although there were some delays by reason of the fact that at that time the Ministry was attempting to work out province-wide.generic job descriptions, which would be used in all five regions. Bgr the spring of 1985 it became apparent there was not going to be consensus reached on the generic job descriptions, and she then worked with Mr. Didemus in preparing a proposal to the Regional Managers' Committee to amalgamate the duties of all of the Clerk positions and create a new position called Financial Services -8- Clerk. That proposal also was not successful and was turned down in the summer of 1985. Ms. Etmanski then proceeded back to .the original task of preparing an updated job description for the Clerks in her office, and before that was completed, the Office Administration Group Job Evaluation Plan came into being. A description was prepared in the OAG format that was available.in March of 1986 which was subsequently evaluated, but with no change in ievel. She testified that at all times she made it clear to employees that she was not responsible for classification but could only ensuie that there existed an accurate description of the job. Mr. Sharp in his evidence.was quite candid that he found it very difficult ~to recall at this date specifics of conversations -. .:' with employees in 1980 but did not believe that he would have made any representation about the reclassification of the nature testified to by Mr. Robbs. He recalled informal discussions on the job specification on various occasions but could not remember any specific details. He indicated it was highly unlikely he would express ,any opinion on the matter. Mr. Weber indicated that to the best of his knowledge, the conversation with respect to upgrading did not take place. He stated that if he had said what was attributed to him, he would remember it. -9- Robert Didemus testified that he did recall conversations with Ms. Dillabough in early 1983 and that at that time he was attending in Toronto regularly as a Member of the Provincial Management Committee reviewing reorganisation of the departments. He believed that he might well have referred to a reorganization of the department in his discussions with Ms. Dillabough, but not reclassifications. 'He stated that as a matter of practice one would not discuss reclassifications with employees before such reclassification had, in tack, been accomplished. 'He specifically stated that he would not have made any undertakings or given any ass&ances on a matter of that tiature. He confirmed his view that the Grievors constituted oie of the best .. administrative groups that he had ever seen and that he had expressed that view to several people on several occasions. While there exist in the evidence significa~nt differences in the recollections'of the witnesses, we are satisfied that these are attributable solely to the lengthy time period that has elapsed since the conversations in question took,place. The employees in the office, both Management and Bargaining Unit, are very close, and there exists a high degree of mutual regard and trust between Supervisors and those supervised. There are, however, a number of conclusions that are clear from the totality of the evidence. The issue of classification was from time to - 10 - time a matter of general discussion within the office, and there can be no question that there wps concern among some members of _ both Management and the Bargaining Unit as to the accuracy of the job specification and its appropriate level of classification. This situation existed not only in Kingston but in all regions of the Ministry's operation. At no time did any~ of these conversations take place in any tone of controversy or against any background or iontext of a potential grievance. To the knowledge of all participants in these discussions, the Supervisors.involved.had no authority with respect to the determination of'the appropriate classification level, and at no time did any Supervisor make any promise or representation either that there would be any change in classification, or if one were . . implemented, that there would be retroactive entitlement. The z issue was a matter of discussion among employees within the office, and the Grievors did have a general understanding that the issue was being looked into and that their Supervisors saw no reason why there would not be an improvement. That this understanding resulted from representations of Management was more a perception in the minds of the Grievors than it was any reasonable inference to be drawn from the statements referred tc in the evidence. The jobs of Clerk 3 and Clerk 4 in the Kingston Office were changing gradually over the period, and the jobs had not completely evolved to their present form until approximately 1985. At that time, a definitive job specification was Prepared - 11 - and submitted for classification, and it would appear that the present grievances were triggered when the Grievors learned by some means that the classification level was not to be changed. We would conclude from the evidence that. the Grievors were, throughout the period, content to let the process work its way through in the normal scheme of things in the.anticipation that the final result would be satisfactory to them. It was not a matter of refraining from recourse to the grievance procedure in reliance on representations from Management. Rather, the Grievor-s did not direct their minds to pursuing a grievance until the normal course of events'proved unsatisfactory. Placing the Union evidence at its highest, 'there was no promise by Management that a reclassification would, in fact, be achieved: there was no representationthat if achieved, it would 6 retroactive: and a whatever Supervisors warranted or represented they would do, they did do. The argument of counsel for the Union was that on the evidence Management made representations.that~reasonably left the Grievors with the impression that their cause was being championed by those responsible for the classification. The foreseeable consequences of these representations were that al employees would hear of them and be so apprised. The. representations,-therefore, prevented the Grievors from pursuing or investigating the grievances because such pursuit would be '. redundant. In these circumstances, it was argued that Management, cannot raise.the 20-day rule as a defence to these grievances in these circumstances. It was argued that we had a wide, equitable jurisdiction with respect to remedy and that in determining,the issue of retroactivity, we should balance the interests of the parties. On the' evidence, there had been no,prejudice to Management by reason of the delay in bringing the grievances and .that Management has been able to respond just as easily :as it, would have been able to respond if the grievances had been filed in 1983. Union counsel conceded that the evidence fell short of establishing a case of estoppel in accordance with..traditional legal principles, but argued that the evidentiary requirement to sup$ort retroactivity was somewhat less. It was argued that whatever were.the subjective intentions of Management, the real issue with respect to retroactivity was how the objective actions *' of Management were perceived by the Grievors and whether the Grievors reasonably believed that the classification matter was being processed. With reference to prior decisions of this Board, particular reliance was placed by the Union'on the decision in &y& 6751'85, (Brandt) wherein in the absence of specific representations on the part of Management, the 20-day rule was held not to apply, and the Board ruled that the appropriate time to apply - 13 - retroactivity 'was the date when the Grievors first approached Management with the complaint. In our view, the.evidence simply does not support the arguments advanced by the Union. The,Union argument was specifically that Management made representations that reasonably left the Grievors with the impression their case was being ." championed by those responsible for the classification. Such representations as were referred to in the Union evidence fell .far short of any representation or assurance that such championing of the cause would be successful, or if successful, would resulti~ in retroactive entitlement. The Grievors were.well aware that the members of Management upon whom they purportedly relied did not,, in fact,“possess any authority to affect the reclassification desired. Further, on the aspect of prejudice ',* arising from the delay, it is clear on the evidence that the jobs have been evolving continuously throughout the period. It was obvious on the hearing that because of the elapse of time, all witnesses were having problems of recollection of specific. matters during the earlier period. If the matter were to proceed on its merits, there exists a very real potential for prejudice to the Employer in not being able to establish the nature of the job at particular points of time in the past. The jobs as the} existed on the date of the grievance may well be different fron the jobs as. they existed at various points of time in the past - 14 - when grievances could have been filed. However, on the fundamental issue, even if we-were to accept the Union evidence in its entirety, we cannot find on that evidence~that it would be reasonable for the Grievors to conclude that they had received any representation or warranty that.there would be a reclassification or that it would be retroactive. In &y,& the . I Board stated at p. 16 the following: Thus, we do not believe it appropriate to apply the 20-day rule where informal efforts have been made to achieve a settlement of a dispute short of recourse to arbitration. Those efforts should be encouraged and, in the event that they are not successful in achieving settlement and,it becomes necessary to grieve,. such relief as might,be awarded by the Grievance Settlement Board should be retroactive to the'point where steps were first taken to settle the grievance informally. The discussions relied upon by the Union in this case were in -A. substance in the course of normal office conversation and were in no sense in the context of the settlement of any sort.of dispute; No grievance of any sort was incontemplation at the time of such discussions. We would'agree with the characterization of our jurisdiction by counsel for the Employer as being one of interpreting and applying the collective agreement and that the only way we can elect not to enforce the bargain reached by the parties would te in circumstances amounting to estoppel as against the Employer. The collective agreement, as frequently interpret'ed by this - 15 - Board, imposes mandatory time limits, and for the Union to succeed in achieving an earlier date of retroactivity this Board must be persuaded not to apply the time limits provided in the collective agreement. To do that, we must find that for some reason the Employer is estopped from relying on its strict rights as set out in the collective agreement. We do not accept the Union argument that some lesse, - standard is sufficient to warrant retroactivity to an earlier date,) and on this point would make reference to the prior decision of this Board in &j&h 237/81 (Roberts 1 at p. 7. 'Phe relevant authorities have been reviewed by this Board ,in a 13/82, (Saltman) wherein, after granting retroactivity beyond'the normal 2G-day period, the Board commented as follows: This is not to suggest that an employee who complains to a superviso~r and even receives a sympathetic 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 Grievor’s 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 agreement. It is clear from the evidence before us that Management were in no sense actively involved in the Grievors' claim, whatever were the perceptions of the Grievors. It is also clear that whatever were the representations purportedly relied upon. by.the Grievers. 16 - the last of these took place in the summer of 1984, and tie effort was made by-any Grievor subsequent to.that time to make further enquiries of Management or to determine the progress of the matter. If principles of equity are to become determinative, then it would appear that the doctrine of Lathes would ,be an appropriate answer to the Grievers' claims to retroactivity. This is really a case wherein there has been no active pursuit by either side but rather's simple acquiescence in the status quo. In the result, therefore, we would conclude that there is no basis to depart from the usual Position of this Board with respect to the appropriate period. of retroactivity. The 20-day rule should be'applied, and there is, therefore, no entitlement to retro&tivity,that would give .to the Grievors any claim during _,. the period prior to the effective date of the Office Administration Group Job Evaluation Plan. DATED this 8th day of Febru+ry,l988. ',: +zgq+ ,Ross L. Kennedy I