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HomeMy WebLinkAbout1987-0678.Aitken et al.93-12-21ONTARiO ( CRcJWNEti. .3YEES EMPLOY~SDELII CO”RONNE DEL’ONTARIO ?r s GRIEVANCE COMMISSlON Di a SETTLEMENT RkGLEMENT ~. BOARD DES GRIEFS. BETWEEN IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE,GRIEVANCE SETTLEMENT BOARD BEFORE: FOR TEE GRIEVOR i FOR THE EMPMYER HEARING OPSEU (Aitken et al) ,Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer Md Gorsky Vice-Chairperson P. Klym Member M. 0,'Toole Member N. Roland Counsel Barrister & Solicitor R. Bayne Counsel Filion, Wakely & Thorup Barristers & Solicitors April 21, 1993 October 5, 7, 1993 1 INTERIM DECISION Although there were nine grievances before us, all of which were dealt with in the parties! statements, by agreement of counsel the only one that we are to deal with at this time is that of Sandra Noad, which was filed as Exhibit 1. It was also agreed that MS. Noad was not to be treated'as a representative grievor, and, unless the parties so agree, then decision in her case will not MS. Noad's grievance is dated December 19.. 1986. and, in it, she alleges that she llwas improperly placed in the pay scale of OAG 8 schedule," and she requests that she be placed I'... at the top level of OAG 8' pay schedule as of December 31, 1985," and that she be given "full retroactivity, salary and benefits for that period of time." apply to the other grievers. The Union filed a "Statement of Facts and Issues" which is . consistent with the requirementto be followed in the. case of classification cases that had been issued by the Chairperson of the Board, wwhich statement is as .follows: I. BACKGROUND 1. The grievors in this matter are Claims Processing Clerks in the Ministry of Health. In or about 1981-1982 the grievors applied for the posted position of Claims Processing Clerks in what was then the Ontario Health Insurance Program. The Claims Processing position was, at that time, classified as a Clerk III, General. All the grievers were successful in their application for the position. Unfortunately, w the grievers were told 2 they had been successful in their competition, they were then informed that they would~ be classified, for the .first year in the position, as Clerk 11s and not Clerk 111s. This status was referred to by the Ministry as "underfill". 2. As a consequence of the underfill' status, the grievers were paid at the Clerk II level and were held back by one year in the commencement of their progression up the Clerk III wage scale. As a further consequence, when O.A.G. replaced Clerk, General in January 1, 1986, the grievors were placed on a lower level of the O.A.G. 8 wage progression than they would have been had their wage progress not be held back by their being. Clerk 11s in their first year of service as Claims Processing .Clerks. 3. The parties have entered into a settlement that covers disputes arising out of the period from the placement in the position until December 31, 1985 and from October 1, 1988 onward. The wage treatment resulting from the original misclassification .that existed from January 1, 1986 to September 30; 1988 is still in issue in that it wBs not settled in the original. settlement. II. : Y 'THE IEV 4. The duties and responsibilities of the grievers were and are identical to those of Claims Processing Clerks who were classified at the Clerk III level. III 'SKILLS AND KNOWLEDGE 5. The skills and knowledge of the grievor-s were and are identical to those of 'Claims Processing Clerks who were classified at the Clerk III level. IV. REASONS FOR THE GRIEVOR'S REOUEST FOR RECLASSIFICATION 6. The grievers were misclassified as Clerk II (underfills) in the first year of their employment as Claims Processing Clerks. This misclassification had the effect of, inter alia, placing the grievors in a lower level of the O.A.G. 8 wage grid upon the transition to O.A.G. on January 1, 1986 until the grievors achieved the top level of that grid. V. RELIEF REOUESTED 7. Payment, with interest, of the amount of money representing the difference between ~what the grievers received in wages during the relevant time and what they should have received had they not been improperly classified. ! i 3 The Employer's Statement of Facts and Issues filed in response to that of the Union's is as follows: Union Counsel's statement of the background facts of this case is generally correct and accepted by the Employer. However, with respect to the accepted practice of assigning persons in an underfill assignment it mustbe clear that all the. employees in question were advised prior to assignment to the Claims Clerk position that they were not fully qualified to perform all of the duties of eh position and would be appointed as Clerk 2, General (Underfill) for ~a period of up to one year if they decided to accept the,assignment. It was generally the practice, in the Health Insurance Division, to remove the underfill status after one year in the position as it was considered the employees would have gained sufficient experience in the 'work to acquire the skills and knowledge necessary to be able to.perform all the required functions of the position. At the end of that period, the grievers were all reclassified to Clerk 3, General in accordance'with the provisions of Article 5 of the Collective Agreement, specifically Section 5.2. It is NOT accepted that the Duties and Responsibilities and Skills and Knowledge of the grievors were identical to the Clerk 3, general Claims Processing Clerks at the time the grievors were assigned on the underfill basis. The purpose of the underfill assignment, as stated above, was to allow the grievors to gain the position 'at the full working level. When it was determined they had achieved that level and were, in fact performing the full duties and responsibilities of the position they were reclassified to Clerk 3, General. It is generally accepted by the. parties that the Memorandum of Settlement entered into on or about 13 March, 1989 resolved the issue of the grievor's underfill status during the various periods from 1981 to 1983, and all claims for additional wages up to December 31, 1985. This is supported in the Union Counsel's Letter of Claim at page 2.~ "The parties have entered .into a settlement that covers disputes arising out of the period from the placement in the positionuntil December 31; 1985 n . . . This is further supported by the letter from Mr. Howard Law of OPSEU's Grievance Office dated 2 October, 1991. i ( 4 "In view of the above, the following should be clear: (i) any claim for Clerk 3 General wages prior to December 31, 1985 is settled;" If this is so, then it must also be accepted thatthe grievers were being correctly paid as of December 31, 1985, at which time they were all classified and correctly paid in the Clerk 3, General salary range. The Office Administration Group Implementation Agreement signed 16 April, 1986 established the Office Administration Category effective December 31, 1985 ,(Part I, 1) and specified the salary Treatment of Employees on Implementation (Part.11, 4). "4.2 Where a ,position, is reclassified to a class with a higher maximum salary, the employee who occupies the position at the time of the reclassification shall be paid the rate that is closest to, but not less than, his/her current rate EXCEPT where the employee was at the maximum rate of the, former salary range for: . 6 months or more, in the case of a salary range with semi-annual increments; or . 12 months or more, in the case of a salary range with annual increments; in which case, the employee shall .be paid the next higher rate." It is the Employer's position that the OAG classification system and pay plan was implemented strictly in accordance with the Agreement with respect to these grievors. All were classified,as Clerk 3, General prior to conversion to OAG, were reclassified to OAG 8~ and the above-quoted procedure was applied. Further salary progression of the grievers from that date onward was correct and proper. Further, it is the Employer's position that once the "underfill" issue was settled in March, 1989 it can not be properly considered by the Board in this instant case, The only issue before this Board is whether or not the Employer correctly reclassified .these grievers from Clerk 3, General to OAG 8 on December 31, 1985. It is the Employer's position that that action was correct. 5 When the hearing opened on April 21, 1993, counsel for the Employer raised two preliminary objections to arbitrability, the first one being based on the memorandum of settlement entered into between the parties dated March 13. 1989, which was also executed by the Grievor, referred to in the above quoted statements of the parties. The said memorandum of settlement was with respect to a grievance filed by the Grievor. (as well as certain grievances filed by other persons). The earlier grievance of the Grievor is dated April 8, 1986, where the Grievor claimed that she had been "improperly classified as a' clerk 3 underfill from June 1, 1982" and requested that she be "given salary and benefits. for that period of.time as a clerk 3 plus . . . appropriated interest." The second objection was based on the delay in filing the grievance before us, it being the Employer's position that it had suffered prejudice by the delay in that its ability to prepare and i present its case has been adversely affected by the unavailability of certain witnesses, the unavailability of certain material that would have otherwise been retained, and by the effect ,of the passage of time on the memories of its witnesses. At the conclusion of the hearing that.took place on April 26, 1993, the parties agreed that when the.hearing resumed on Octo,ber 5, 1993 ~they would present evidence and argument with.respect to the preliminary objections. 6 During the course ~of the continuation of the hearing on October 5,~ 1993, a third objection.to arbitrability was raised by counsel for the Employer based on the terms of the Local Appendix to the Sectoral Framework Agreement between the parties of August 1, 1993. The particular, provisions,of the Local Appendix to the Sectoral Agreement relied upon by the Employer are as follows: 8. The parties agree that all classification grievances under the Crown Emolovees Collective Baroainina Act or under a collective agreement between the parties filed by or on behalf of employees in the bargaining unit of public servants represented by the Union for which a decision of the Grievance Settlement Board has not been rendered by August 1, 1993 are withdrawn effective August 1, 1993 and the parties shall take no steps to further any such grievance or any hearing of such a grievance and shall take no steps to enforce any decision of the Board pertaining ~to any such grievance after August 1, 1993. 9. The parties agree they shall take no steps to further any classification grievances under the Crown Emplovees Collective Baraainina Act or under a collective agreement between the parties filed after August 1, 1993, except for any classification grievances in respect of a new classification system in which such grievances are expressly .allowed. 10. for the purposes of this agreement, and, in particular paragraphs 8 and 9 above, "classification grievances" includes, but is not limited to, (a) all grievances claimings improper (b) classification of persons classified within the. Office and Administration Group of the classification system of the Employer, all grievances claiming improper classific.ation of pe~rsons within the classification system of the Employer in which part of the settlement desired is the making of a new classification or classification standard, and i 1.’ :- \ 7 (cl all grievances claiming improper classification of persons within the classification system of the employer in which part of the settlement desired is~ the reclassification of the grievor or grievers to an existing classification standard ~that properly applies to him, her or them. 11. For purposes of clarity only, and without affecting paragraph 8, the withdrawal of grievances in paragraph 8 does not affect those grievances for which the Grievance Settlement Board has rendered a decision before August 1, 1993 or to the 'salary ranges that may be set by agreement of the parties or by, arbitration under Article 5.8 of the collective agreement resulting~ .from a decision of the Grievance Settlement Board before August 1, 1993. 12. Where a decision of, the Board or agreement or arbitration .under Article 5.8 of the collective agreement referred to in paragraph 8 does not affect all of the employees at a level in a class standard, the result of that decision,~ agreement or arbitration shall be extended to an employee not otherwise affected by.that decikion, agreement or arbitration where that employee has duties and responsibilities that are identical to.employees ~who were the subject of the decision, agreement or arbitration. A side letter to the Local Appendix is as follows: The' Employer agrees to allocate the lump sum of $20,000,000.00, in addition to any other amount allocated for the Bargaining Unit Overhaul, for the purpose of compensating employees whose classification grievances have been withdrawn or rendered void by the local agreement. The Employer will pay this money to the employees mentioned above in accordance with an agreement between the Union and the Employer for the distribution of the monies to these employees. Because of the nature of the last mentioned objection, it was suggested to the parties that they agree to first present evidence and argument 'with respect to it, and that the Board would only hear 8 evidence and argument with respect to the other objections should the noted objection fail. The parties accepted the Board's suggestion. The parties also agreed that the Board should decide the noted objection rather than having itreferred elsewhere for determination. the local appendix because it, in classification of the Grievor at the underfill position in 1982. From the position of the Employer, it is evident that it regards the instant grievance as falling within paragraph 9(c) of substance, challenges the time she was appointed to an It was the position of the Union that the grievance before us does not concern classification but, rather, proper placement on the OAG 8 grid when the Grievor was transferred from the Clerk 3 General classification to that of OAG 8 on January 1, 1986. The Employer's position was that the allegation that the Grievor had been improperly placed on the OAG 8 grid was based on an alleged misclassification in 1982 and,~ hence, the Union's position, in reality, relates to a claim that the Grievor had been improperly classified in 1982. The 'issue raised by the Union was said to be the same issue as arose in the earlier grievance (Exhibit 6) which was couched in terms that made it clear that the Grievor was claiming that she had been improperly classified from June 1, 1982,when she was appointed to the underfill position. The 9 monetary settlement desired in the grievance was said not to affect its being, in essence, a classification grievance. In the case before us it is important to look at the statements of the parties, above~ referred to, .which are binding on them except in limited circumstances where they are shown to have been made in error. See, Blomme, 547/9l(Gorsky) (First, Second and Third Interim Decisions), where the binding effect of the statements and the circumstances that must exist inorder to permit a party to resile from them is discussed. It was not disputed that the Grievor applied for the position of Claims Processing Clerk in or about 1981-1982, as is alleged in the Statement. of Facts and Issues, and that an incumbent of that position was expected to hold the classification of Clerk 3, General. Although the Union's Statement of Facts and Issues ,indicates that the Grievor was successful in her application for .the position, we are satisfied that the position was filled on an underfill basis, and, as is further stated in ~the Statement of Facts and Issues, the Grievor was classified as a Clerk 2 and not a Clerk 3 while assigned to the underfill position. Although there was same difference between the parties as to the classification of the Grievor at the relevant times, the Union taking the position that the Grievor was referred to as.a Clerk 3 ,(underfill), with the Employer taking the position that she was a Clerk 2 (underfill), we are satisfied that the statement contained i i i ’ 10 in the Union's Statement of Facts (and acknowledged in the Employer's Statement) is correct. Whether Shea should have been properly classified a Clerk 3 upon her appointment to the underfill fosition is another matter, and one that this Board would be called upon to determine. We cannot accept the submission of counsel for the Union that we~ought to disregard the allegations of fact taken in the Union's Stemement, and to now find that, contrary to the Union's earlier position (that taken inits Statement) that the Grievor was classified as a Clerk 3 and not as a Clerk 2 when in- the Underfill position. As above noted, there was no evidence adduced that would permit the ,Union to resile from its earlier position. The reference to the status of the Grievor as a Clerk 2 is fou,nd in paragraphs 1 and 2 of the Union's Statement oft Facts and Issues. It. is also evident from the Union's Statement of Facts and Issues that its case would be dependent on its establishing the facts outlined by it as supporting its view of the resolution of the issues before the Board. In paragraph 4 of itsstatement there is an allegation that the duties and responsibilities of the Grievor were identical to those of Claims Processing Clerks classified at the Clerk 3 level, and paragraph 5 discloses the Union's position that the Grievor's skills and knowledge were 11 identical to that of the Claims Processing Clerks classified as being at the Clerk 3 level. Most significantly, under "Reasons for the Grievor's Request for Reclassification," paragraph 6 of the Statement provides that the Grievor was misclassified as Clerk 2 (underfill) during the first year of her employment as a Claims Processing Clerk and that this alleged misclassification had the effect of, inter alia, placing her in a lower level of the GAG 8 wage grid upon the transition to OAG on January 1, 1986 until she achieved the top level of that grid. It is evident from the statement of the Union, that it must first be established whether its allegations with respect to the duties and responsibilities performed by the Grievor and her skills and knowledge were "identical to those of Claims Processing Clerks who were classified at the Clerk 3 level," and not those of a persons classified as Clerk 2. cat the hearing, counsel for the Union asked us to view the Grievor as having already been classified as a Clerk 3 General when she was appointed to the underfill position. If that was the case, it was submitted that the Board was not being asked to deal with what her proper classification when she was appointed to the underfill position was but was merely required to ascertain her place on the:OAG wage grid for salary purposes on January 1, 1986. 12 We 'were referred to Alani/Christopher, 1336/91 (Finley), where the Board discussed underfill assignments and the application of such assignments as set down in. the Ontario Manual of Administration. Exhibit 7 was filed in the matter before~us, being an extract from the Manual of Administration (pp.5-46-1 and .5-46-2), which is as follows: (continued) "Underfill Assignment An underfill assignment occurs where a person,~' lacking the full qualifications ~for a'position, is assigned, but: . is not required to perform the full range and/or level of duties of the position; and is paid at a classification level lower than that established for the position. Level Assignment: An underfill assignment ought, normally, to be approved at one level, and in no case more than two levels, below ~the classification of the position to which .the person is assigned, EXCEPT in special cases : . where prior approval of the Recruitment Branch, Civil Service Commission has been received; and . where the ministry can demonstrate the existence of a formal training program. rlteru: An underfill assignment may only be made if one of the following criteria applies: a fully qualified candidate is not available for the positions; or . a deputy minister is exercising the authority to waive a competition under planned career progressionfor a management position. Where staffing authority: is NOT delegated to a ministry, prior approval of the Recruitment Branch, Civil Service Commission, is required for all underfill assignments; . is delegated to a ministry, prior approval of the deputy minister or designee is required. Conditions of Assiqnment: Prior to assignment, the ministry shall advise the person in writing of the: . reason for the underfill assignment: probable length 'of the underfill assignment; and . course of action if the employee fails to fulfil the conditions of underfill assignment. gpriQdiC Review: Within two weeks from the date of the assignment, the ministry shall advise the person in writing of the: outline of a development program designed to enable the employee to perform at the working level of the position; and . dates for review of progress. The underfill assignment shall be reviewed with the employee during the course of the underfill. In the event that the'employee is not progressing at a rate acceptable to the ministry, and where the ministry has met the conditions of assignment, a course of action shall be determined at the time of the review. E!smQv=1 of Where the ministry 'determines that the employee has met the requirements of the position either before the termination of the agreed length of the underfill, or upon its expiry: 1. ! the status of ~underfill shall 14 be ion removed; and documentation of this act recorded. Salary Treatment: For salary treatment on assignment to a Position on an underfill basis, see "PAY ADMINISTRATION" at Section 9 of this volume. In order that the Board might better understand the nature of the dispute between the parties, Exhibits 3, 4 and 5 were filed, which are as follows: Exhibit 3: 17 July 1991 Mr. Robert Anderson Personnel Officer MacDonald Cartier Building 49 Place d'Armes Kingston, Ontario K7L 5B9 Re: OPSEU v. MOH (London OHIP Office - In Province Clerks) Dear Mr. Anderson: I have explained to the London In-Province Clerks the proper placement on the. grid upon conversion to the OA .series, pursuant to the OA Collective Agreement. Accordingly, these grievances will not proceed. However, there is a group of In-Province Clerks who were improperly placed upon the OA 8 wage grid because at the time of conversion their grievances ,agai~nst the Clerk 2 Underfill classification were still outstanding. Because of the Clerk 2 classification, they were not placed on the OA 8 grid in the same manner as In-Province Clerks in the Clerk 3 classification. As you are aware, the Aitken et al grievance against the Clerk 2 Underfill was settled~ in their favour by the Ministry. Accordingly, it is clear that these employees should have been converted in December.1986 from Clerk 3 ._. 15 to OA 0. Their placement on the grid, with retroactive compensation, should be adjusted. I look forward to your reply. Very truly yours, Howard Law Grievance 'Officer Employer Exhibit 4 Mr. Howard Law Grievance Officer 8 August, 1991 Ontario Public Service Employees Union 1901 Yonge Street Toronto, Ontario~ M4S 225 Dear Mr. Law: e: OPSEU v MOH (London In-Province Claims Clerks) Your letterof 17 July, 1991 refers. It is~ noted that the grievance concerning the In-Province Claims .Clerks in the London MOH Office will not proceed. With regard to the Aitken et al matter: it should be noted that all of the.grievors were reclassified as Clerk 3 General prior' to conversion to the OAG series. Our records show that the grievor-s were initially appointed as Claims Clerks, Clerk 2 General at various times from 1980 to 1982, with the majority of them being appointed in mid-1982. The appointment to Clerk 3 General on removal of the Underfill condition generally occurred one year after the initial appointment. Therefore, their initial conversion to OAG 8 was based on their salary as Clerk 3 General, as were all of the other In-Province Claim Clerks. It should be, noted that at the time of the settlement of this matter all grievers who were not then being paid at the maximum of the OAG salary range were given increases to the next step in the range, in accordance with the terms of the Memorandum of Settlement. . (. 16 Clearly, these employees were converted correctly in December 1986 from Clerk 3 General to OAG 8, and no further adjustment is warranted. Yours truly, R. J. Anderson Personnel Officer Exhibit 5 2 October 1991 OPSEU #: 70490 Mr. Robert Anderson Human Resources Branch Ministry of Health 49 Place d'armes 4th Floor Kingston, Ontario K7L 553 Re: OPSEU v..OHIP (Aitken et al - Underfills) Dear Mr. Anderson: Thank you for your letter of August 8th regarding the outstanding issue of the proper placement upon the OAG 8 wage grid of the above-noted group of eleven grievors. The memorandum of settlement dated March 13th, 1989 resolved.two issues in return for the withdrawals of the May and December 1986 underfill grievances, namely: (i) $400.00 cash, and (ii) progression to the next step of the OAG 8 wage grid effective October 1, 1988. As local management will confirm,~ the original employer proposal for settlement included the withdrawal of the grievances filed in December 1986 with respect to placement on the OAG 8 wage grid. This was expressly declined by the Local and the grievers and the final memorandum of settlement expressly reflects this in. paragraph 1. i ( ,. ’ 17 ~nview of.the above, the following should be clear: (i) any claim for Clerk 3, General wages prior to December '31, 1985 is settled; (ii) any claim for wages owed as a result of improper placement on the OAG 8 wage grid after October 1, 1988 is settled; (iii) the grievers' claim for wages owed as a result of improper placement on the OAG 8 wage grid from December 31,, 1985 until September 30, 1988 remains in dispute under the December 1986 grievances which were expressly not withdrawn. Accordingly, it is the Union's position that the improper, underfilling of the grievors as Clerk 2 General led directly to an improper pl.acement on the Clerk 3 General grid on December 31, 1985, the date of conversion to the OAG classification system. I will provide details shortly as to the actual impact on particular grievors. However I hope that wecan resolve the principle of the~matter in the interim. Failing this, I will be scheduling this grievance before the Board for November 12th, 1991. I look forward to hearing from you. Very truly yours, Howard Law Grievance Officer The Memorandum of Settlement affecting the Grievor, executed, March 13, 1989 (Exhibit 2), is as follows: NDUM OF SETTLEMENT 1. The parties hereto agre,e to without precedent and without prejudice the following terms and conditions settlement of the grievances listed in Schedule "A" attached underfill grievance only. 2. Each grievor listed in Schedule "A" shall be given a cash payment of four hundred dollars ($400.00) in settlement of their grievances as listed in Schedule A. 18 3. Each grievor listed in Schedule "A" who is currently being paid at a rate in the pay schedule which is less than the maximum rate in the range shall have their pay rate increased to the next level in the range. 4. The salary revision as detailed in paragraph (3) shall be effective from October lst, 1988 on which this agreement is signed by the parties. 5. The grievors shall not disclose the terms of this agreement to any person without authorisation of Mr. C. Mee with the exception of the Grievance Settlement Board. 6. It is understood that a.violation of the above provision #5 will require the grievor to repay all monies paid out pursuant to the agreement with the exception of the Grievance Settlement Board. If this grievance proceeds on the merits, the Board will have to decide the Grievor's claim for wages owed. In order to do this, the Board will first have to ascertain her proper placement on the OAG 8 wage grid from December 31, 1985 until September 30, 1988, which is the matter remaining in dispute under the Grievor's December 19, 1986 grievance (Exhibit l), being the grievance before us for determination. As noted, counsel for the Union argued that this is not a classification gr,ievance because the Board is only required to,determine the correct placement of the Grievor on the OAG 8 salary grid - the Union's positi'on being that there is no dispute between the parties as to the classification of the Grievor during the relevant period - January 1, 1986 to September 30, 1988 - and Mr. Anderson's letter to Mr. Law (Exhibit 4) acknowledges that this is the case: "With regard to the Aitken et al. matter: it should be noted that all of the Grievers were reclassified as Clerk 3 General prior to conversion to the OAG series." ( ! 19 A number of issues of fact and law may arise under a single grievance. On its face, the issue identified by counsel for the Unions does not appear to involve a classification grievance, in the sense that there is no dispute between the parties as to the correct classification of the Grievor at the time of the conversion to the OAG class series. However, there is an apparent classification issue directly raised by the Union which is set out in paragraph 3 of its Statement of Facts and Issues: . . . The wage treatment resulting from the original misclassification that existed from January 1, 1986 to September 30, 1988 is still an issue and that it was not settled in the originalsettlement. The Union, in' its Statement of Facts and Issues, recognizes that in order for its position in the grievance to be established, it must demonstrate that the original placement of the Grievor in the underfill position amounted,, in its own words, to a. "misclassification." The above quoted portions of the Union's Statement of Facts and Issues indicate that while the issue relates to: "The wage treatment . . . that existed from January 1, 1986 to September 30, 1988 . ..." this wage treatment resulted "from the original misclassification." In order for the Union's argument to prevail, it acknowledged that it .had to establish an "original misclassification." It is not unususual, in classification cases, for the issue to involve a.question of classification at an earlier moment in time, where, at the time of the hearing, a grievor is already classified at the requested or a higher level. I / \ ,- * 20 It is significant that the Union, in its Statement of Facts and issues, which it did not endeavour to resile from, states its position in conventional terms relevant to a classification grievance. In section II of its Statement of Facts and Issues, "DUTIES AN RESPONSIBILITIES PERFORMED BY THE GRIEVOR," it states that the duties and responsibilities of the Grievor were identical to those of Claims Processing Clerks who were classified at the Clerk 3 level. In Section III "SKILLS AND KNOWLEDGE," it states that the skills and knowledge of the Grievorwere identical to those of the Claims Processing Clerks classified at the Clerk 3 level. In Section IV "REASONS FOR THE GRIEVOR'S REQUEST FOR RECLASSIFICATION," the Union states that the Grievor was misclassified as a Clerk 2 underfill during the first year of her employment as a Claims Processing Clerk, which alleged misclassification had the effect, inter alia, of placing her in a lower level of the OAG 8 wage grid upon the transition to OAG on January 1, 1986 until she achieved the top level on that grid. Accordingly, although the relief requested in Section V of the Union's Statement of Facts and Issues relates to payment with interest of the amount of money representing the difference between what the Grievors received in wages during the relevant time and what she should have received had she not been improperly 21 classified, the determination of the payment issue is dependent on the prior determination of a~ classification issue., At the hearing, counsel for the Union argued, without adducing evidence in support .of his position, that the Grievor- had been appointed to the underfill position as a Clerk 3 General and not as a Clerk 2 General. It was submitted that, that being the case, the dispute between the parties at no time involved a classification issue, that matter having been settled by the underfill appointment as a Clerk 3 General. There being,.according to Union counsel, no dispute as to the proper classification of the Grievor at any time, either as a,Clerk 3 General or as an OAG 8, we were asked to regard the matter before us as not representing a classification grievance as envisaged by the Local Appendix and to deny the noted objection to.arbitrability. If counsel for the Union is correct, the Union would still have to satisfy the' Board that the Grievor's duties and responsibilities and skills and knowledge were identical to those of the Claims Processing Clerks classified as Clerk 3 General, as alleged in paragraphs 4 and 5 of the Union's Statement of Facts and Issues. The Union's argument that this is not a classification grievance is dependent on our first .finding that there is no dispute between the parties as to the correct classification of the i / 22 Grievor as 'a Clerk 3 General from the time of her appointment to the underfill position. If there his such a dispute, then this Board must decide which of the competing contentions aeto the classification of the Grievor upon her appointment to the underfill position should prevail. .It is difficult to see how a grievance that requires' the determination of a' grievor's correct classification at some point. is not a classification grievance because the ultimate.issue for determination involves placement on a salary grid. If the Union's submission were,accepted, then it would be possible to disguise many classification grievances, which are largely driven by a legitimate desire to be paid at a grievor's proper classification level, by formulating the grievance as raising an ultimate issue that does not refer to her having been misclassified, even if the ultimate issue cannot be decided without first determining such an issue. We note that paragraph 10 of the Local Appendix does not furnish an all-encompassing definition of "classification grievances." We would regard classification. grievances as including grievances that can only be decided if the Board must first render a decision with respect to the proper classification of a grievor at some point in time. As noted, counsel for the Union relied upon the decision of the Board in the Alani/Christonhe+ case. In that.case, the issue before the Board also arose as a result of a memorandum of 23 settlement having been~ executed by the parties. The particular part of the memorandum of settlement (Item 5D) provided that: All grievors classified as TA.111 on the date of~this settlement shall be reclassified to the classification of Financial Officer 4, (atypical) as of the date of this settlement. The grievers (at p. 9) contended that as at the date of the memorandum of settlement, "They were TA III's, and they should have become FO 4's," pursuant to the said settlement. In that case, as in the case before.us, the union was not challenging the use of the Underfill Policy and, accordingly, for the purposes of this case it is being regarded as valid. In the Alani/Christopher case, the employer took the position, as did the Employer in the case before.us, that the grievers, when they were appointed to the underfill positions were-classified at one classification level below the normal classification for incumbents of the relevant positions. In Alani/Christouhey, the employer also took the position, as did the Employer in the case before us, that promotion to the higher classification did not take place until the completion of the underfill assignment. In the uani/Christoo& case, as in the'case before us, the Board.had to determine the status.of a grievor at a moment in time. At p.19 of the &lani/Cbristonher case, the Board states: References to their status in the documents, when taken as a whole, present an inconsistent picture particularly c. ( . ‘ 24 with respect to language and terminology. [Emphasis added.1 [sic1 .The Board goes on to state,' at pp.19-20: The letter dated August 21, 1990 (Ex. 7) states that This will confirm your successful candidacy for the position of Senior TdX Auditor (Desk) with Corporations Tax' Branch, effective Monday Auaust 20. 1990. The position is classified at the level of Tax auditor 3 ..* . Since you do not meet the full requirements of the position at the present time, you will be classified at .the underfill level of Tax Auditor 2... . ..Removal of the underfill will be conditional upon satisfactory performance... The training plan (Exhibit 8) set out by Management and agreed to by the parties refers.to the following: POSITION: Tax. Auditor 3 Underfill PERIOD OF TRAINING:'... The employee will revert to his previous position of Tax Auditor 2, if the expectations as set out hereunder are not fulfilled. Overall evaluations of, performance wills be completed :..for the purpose of promotion to Tax Auditor 3. A memorandum from Mr. Waugh to Mr. Frankland concerning SUBJECT: N. Alani's 6 ,Month Underfill and Field Visit Program Review . ..his appointment as a TA 3 underfill. (Emphasis in original) The Board, in Alani/Christopher, did not say that the grievers in that case could snot have been appointed to the underfill 25 position at their previous classification: TA II. It is significant that the Board (at p.22) found that: "There was no mention of their continuing in a TA II classified position or undertaking the duties of such a position. Nor were they offered a position with a TA II classification. Further at.pp.22-3, the Board states: The underfill program places a condition on the participant. The question .is, whether .this is a condition precedent or a condition subsequent. That is, must the condition be fulfilled before the individual is promoted to the position or, does the fulfilling of the condition confirm that person in the position to which he or she has already been promoted. Nothing in the policy or elsewhere mandates that it should be one or the other. Each situation is determinative of whether or not it is a condition subsequent or precedent. In the circumstances of the &lani/Christooher case, the Board concluded that: ".,. the Grievors were assigned to positions with a TA 3 classification as of August 20, I990 and were in those positions on the date of the settlement,. March 11, 1991 and therefore come within the parameters of Item 5 CD)." It is evident from'the Alani/Christopher case that the Boards did not find that the underfill assignment policy required that a person appointed to an underfill position had~ to have it approved at the same classification as the position to which the employee had been appointed. The facts .of each case will determine the level of classification of the employee assigned to an underfill position. The arguments made in the Alani/Christopher case on 26 behalf of the grievors could not assist the Grievor in the case before us. The Union, in its Statement of Facts and Issues in the case before us, acknowledged that the Grievor was classified as a Clerk 2 when assigned to the underfill position. No attempt was made to resile from this position through evidence being adduced to show that the statements contained in the Union's Statement had been included,through inadvertence or could.be altered for some other permissible reason. Cf. Blomme, above. .Although, standing alone, it would not be determinative, Exhibit 8, which is a memorandum dated June 14, 1982, from the Grievor to Mr. J.M. Davis,~ Director of the London District Office, is consistent with statements contained in the Union's ~Statement and with the position of the Employer. That Exhibit states: This memo is in reference to my application for the Claims Trainee (underfill) position, Clerk 2, General., In accepting this appointment, I agree to accept the lower salary in effect for the Clerk 2,. General Classification, ;which is in effect at the time of my new appointment. "Mrs. S. Noad" It is also significant that in Alani/Christouher the grievors had been Tax Auditors (Desk) I classified at the TA 2 level, and had applied for the position of Senior Auditor (Desk), which was classified at the TA 3 level, and had (at p.21 already served several months as Tax Auditors (Desk). On the basis of the evidence before us, the Grievers had not been' Claims Processing Clerks but had been Data Entry Operators. i I . j 27 Furthermore, the position of the Union, as set out in Exhibits 3 and 5, is consistent with the contents of its Statement of Facts and Issues: that the Grievor had been improperly appointed as a Clerk 2 General. In any event, the facts before us would raise a clear issue as to the classification of the Grievor at the date she was appointed , to the underfill position in 1982, and that is an issue that the Board could not avoid dealing with if the matter were to be heard on its merits. However the matter is examined, there is an inescapable conclusion that this panel of the Board would have to determine, as a central issue, the classification status of the Grievor as at the date of her appointment to the underfill position, and, to. that extent, we would.be dealing with a classification grievance as envisaged under .the Local, Appendix to the Sectoral Framework Agreement of August 1, 1993. For,the reasons stated, above, we do not have to deal with a situation where the Grievor had been appointed to the underfil ,l position as a Clerk 3. The determination of the Board on the merits, will, for the reasons above stated, require us, to decide whether the Grievor was properly a Clerk 2, tom which classification we find she had been . 28 assigned when appointed to the under-fill position, or whether she : should havebeen classified as aClerk 3 at that time. Unlike the case of 'Alani/Christopher, where the evidence clearly pointed to the conclusion that the grievers had been appointed to the FA 3 classification,. as they contended, the evidence here does not support a conclusion that the Grievor had been appointed at the Clerk 3 level to the underfill assignment. Reference was also made to the case of Victor Walton, 612/81, 613/81 (Verity). In that case, the Board notes, at p.14: This board is of the view that management's policy on underfill appointments presents certain inherent difficulties as being contrary to the ‘classification scheme recognised by the Parties in their Collective Agreement. To us it appears unreasonable~ that, an Employee for pay purposes is categorised in one classification,, and for evaluation purposes is considered in a separate and distinct classification. We have already noted that, by agreement of the parties, we are to treat the Employer's policy on under,fill appointments as being valid, and are required to reconcile any "inherent difficulties" while treating .the policy as.valid. However, it is of significance that in the Walton case, the Board noted that the grievor was appointed to a position "underfilling a Laundry Worker 2 position" (at p.3) and was "classified at the level of Laundry Worker 1" for a maximum period of twelve months pending his "acquiring the necessary experience and skills." (Ibid.) In the Walton case, the Board found that the employer 'had improperly I 5, . 29 appraised the grievor at the laundry worker 2 classification level "when in fact he was classified as Laundry Worker 1." (At p.13.) The Board can appreciate the frustration of Ms. Noad because of our having to allow 'the preliminary. objection and declare her grievance to be inarbitrable. Our sympathy fdr her position, however, does not permit us to overlook the validity of the objection which we must uphold. Accordingly, and for the above reasons, we must declare the grievance to be inarbitrable. Dated at Toronto this 21stday of ;~December,1993. .M. Gorsky - Vice Chairperson "I Dissent" (dissent attached) P. Klym - Member 07 fi' . 0'"Toole - Member !I c-: GSB Pile 618/W OPSEU (Aitken~et al) and Ministry of Health DISSENT OF UNION NOMINEE ,I have carefully studied the detailed decision of the Chair and, with respect, I cannot agree. The issue we are required to decide at this stage is solely whether we should uphold the employer's preliminary objection that this is a classification grievance and thus not subject to arbitration as per the Local Appendix to the Sectoral Agreement. The issue raised in the grievance before us is the proper pay level of the grievor within the O.A.G. 8 pay schedule. This in itself is certainly not a classification issue. I do agree that, in order to eventually resolve the grievance, the Panel will have to determine the classification status of the grievor at the date of her appointment to the underfill position. If the position to which she was appointed actually bore the classification of Clerk 2 within the class standards system and she claims it should have had a Clerk 3 classification, then I would agree that this is a classification grievance. However, if the position which she occupied was actually classified'as Clerk 3 within the class standards system, then the issue is whether the underfill was properly applied and whether the lesser pay assigned to her within the Clerk 2 pay scale was improper. I cannot agree that solely determining the actual class of a position, within the class standards gystem, to which an employee is assigned, without any claim that this position is in the wrong class standard, is a UclassificationW grievance. For example, a'dispute may arise under Article 25 during surplus declaration, bumping or lay-off as to the correct actual classification status of an employee at a relevant time. Surely, determining this status can't be considered as falling within the intent of the parties under paragraphs 8, 9 and 10 of the Local Appendix to the Sectoral Agreement. This is precisely the issue before us - determining the status of the grievor at the time she was appointed to the position. -2- Before we can uphold the ~employer's 'claim that this is a classification grievance, we. must determine under which class standard the grievor's position fell at the time the underfill condition was imposed. As stated in the Alani/Christopher decision, with underfill assignments 'a determination may have to be made whether' the underfill condition must be fulfilled before the individual is promoted to the position or, does the fulfilling of the underfill conditions confirmthat person in the position to which he or she .has been promoted. To make this determination, evidence of what actually took place at the time the position ~was filled is essential. This evidence includes such things~ as the job posting, the position specification, the class standard for the position, the results of the job posting and the conditions of the underfill assignment which are required. to be in writing according to the Underfill Assignment Policy in the Manual of Administration. ,None of this essential evidence was provided to us. The Chair makes mention in his decision that the Union counsel argued that the grievor had been appointed to the underfill position as a Clerk 3 General but did not.adduce evidence in support of his position. I point out that the preliminary objection was made by the employer. Surely, the party making the preliminary objection is the party that' has the onus of adducing evidence required to sustain that objection. The employer in this case is claiming that .the original position was classified as a Clerk 2. The employer has not produced any of the evidence required to sustain this position. The only evidence brought in this regard is Exhibit 8, the June 14, 1982, memorandum signed by the grievor; but even the Chair admits that this evidence, standing alone, would not be determinative. -3- Balanced against this is Exhibit '6, a grievance wherein the grievor had claimed she was ~improperly classified as a Clerk 3 Underfill. Surely this evidence forms no basis to conclude the grievor's position at the time of the underfill was classified according to the standards as a Clerk 2. Additional evidence to mitigate against a conclusion that the grievoris position was classified as. Clerk 2 stems from the definitions of "Underfill Assignment" in Exhibit 7, the policy extract from the Manual of Administration. There is agreement by all that this case involves %nderfill" and that the Underfill Policy of Exhibit 7 applies. The definition of "Underfill Assignment" should not be evaded or ignored. It states that an underfill assignment occurs when a person lacking the full qualifications for a position, is assisned to the position but is p&J at a classification level lower than that established for the position. There is no question that the grievor was paid at a Clerk 2 level - not lower than Clerk 2. 'If she was ,really assigned to a Clerk 2 position for which she was paid at a Clerk 2 rate, it is logical to conclude she was performing the duties of her Clerk 2 position and no underfill condition would be involved. The Chair, also puts great weight on the words used by the parties in filing their Statement of Claim and upon the notion that the Union did/??&ile from the contents of its statement. I cannot accept the rationale of the Chair that ~the words used by the parties in a Statement of Claim, made a long time before any Social Contract Local Agreements existed, should.,be persuasive in deciding the issue. There was no need for the parties to be extremely careful in how they used the word flclassificationll. because the issue of non-arbitrability was not there. The Board would~ decide the actual issue, no matter what label was used in correspondence by the parties. It is the substance of the claim that is important and not a simple misuse of a word or a label. -4- In addition, I am concerned about the fairness of putting great weight on the effect of the words in the Statements of Claim when neither party even raised this issue before us. Nor did any members of the Panel raise this issue. Surely, if it is to be given such weight that it really swings the balance in deciding the issue, the parties' should have been so alerted and given the opportunity to make representations to the Panel on this issue. Ins conclusion, I would.find that the employer has failed to establish that the grievor's position at the relevant time was classified as Clerk 2. None of the normal evidence 'required to establish this was brought before us.. It. is incorrect for us to conclude at this stage that this is a classification grievance. I would dismiss this preliminary objection of the employer. &-t&A Peter .Klym .