HomeMy WebLinkAbout1987-1159.Byng and Rambali.89-05-17-i- - EMPLOY.3 DE LA CO”RONNE DE L’ONTARIO
COMMISSION DE
SETI’LEMENT REGLEMENT
I
DES GRIEFS
1159/87
IN THE MATER OF AN ARBITRATION
Under
TKE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Byng, Rambali)
- and - Grievor
The Crown in Right of Ontario
(Ministry of Industry, Trade & Technology)
Employer
APPRARINGFOR
THE 'GRIEVOR:
APPEARING FOR
TNE ENPIDYER:
Hearins:
M.V. Watters
T. Browes-Bugden
I. Cowan
Vice-Chairperson
Member
Member
N.A. Luczay
J.E. Paul
Grievance Officer
Ontario Public Service
Employees Union
M. Milich
Staff Relations Officer
Staff Relations Branch
Human Resources Secretariat
February 24,1989
.
DECISION
This proceeding arose as a consequence of the grievances
of Dianne Byng and Barbara Rambali, both dated April 28, 1987.
These grievor6 alleged that they received improper salary
treatment upon the reclassification of their positions occasioned
by the implementation of the Office Administration Group Job
Evaluation System (0.A.G.). By way of remedy, they requested
that their anniversary dates be re-established and that they be
awarded appropriate compensation.
The facts relevant to the resolution of this dispute may
be briefly stated as follows:
(i) The grievor6 occupied the position of Company
Information Officer at the Hearst Block Offices
of the Ministry of Industry, Trade and Technology.
Prior to January 22, 1987, their position was
classified as Clerk 4 General. The salary range
for this classification had five (5) levels. Both
of the grievor6 had progressed to the fourth level.
On January 22, 1987, the grievers were notified that
their positions had been reclassified at the Office
Administration 10 level retroactive to December 31,
1985. They were placed at the first level of the
salary range for this new classification. As noted
above, this change occurred as a result of the
implementation of the O.A.G. job evaluation system.
It was agreed that this development led to a salary
increase for the grievers.
(ii) Prior to January 22, 1987, the grievor8 had the
following anniversary dates:
Dianne Byng..................November 1st;
Barbara Rambali..............April 1st.
Assuming satisfactory performance of their job duties;
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they could expect to progress through the incremental
steps of the salary range on their anniversary dates.
At or about the time the employer actually reclassified
the grievers, it also elected to amend their anniversary
dates to January 1st from the dates cited above. The
effect of this decision was that these employees would
not progress to the second level of the Office
Administration 10 classification until January 1, 1987.
The grievers’ claim, simply put, was that their
anniversary dates should not have been altered in this
fashion. Ms. Rambali would then have moved to the
second level on April 1, 1986 and Ms. Byng would have
reached the same level on November 1, 1986. They
alleged that their salary progression was unjustly
delayed by nine and two months respectively through
the action taken by the employer in this instance.
Viva vote evidence was not presented at the hearing of
this grievance, as the parties were in substantial agreement as
to the chronology outlined above. They differed, however, as to
whether the employer could unilaterally adjust the anniversary
date. Extensive reference was made by both parties to Article 5
of the collective agreement (Pay Administration); the O.A.G.
Agreement dated April 16, 1986 (Exhibit 3); and to certain
excerpts from the Manual of Administration relating to “Pay
Treatment On Reclassification Due To New Or Revised Class
Standards” (Exhibit 4) and “One Step Salary Increase” (Exhibit
9(a)).
At the outset, the representative of the employer raised
a preliminary objection to the arbitrability of the grievances.
His argument in this regard had two components. Firstly, it was
submitted that anniversary dates are inextricably linked to the
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merit system. The employer adopted the position that because of
this connection, the present dispute fell outside the
jurisdiction of this Board by virtue of the express prohibition
contained in section 18(l) of the Crown Employees Collective
Bargaining Act, R.S.O. 1980, Chapter 108, as amended. Secondly,
it was further submitted that the collective agreement, including
the O.A.G. agreement which constituted an appendix to same, was
silent as to the treatment to be accorded to anniversary dates on
the implementation of O.A.G. We were therefore cautioned against
adjudicating the issue placed before us as to do so would be
tantamount to an amendment or enlargement of the collective
agreement contrary to article 27.16 thereof. The awards in
Haladay, 94-78 (Swan); Dickie, 0314-85 (Palmer); and O.P.S.E.U.
(Union), 1398-84 (Brent) were relied on in support of this
objection. On the merits, the employer argued that both parties
treated the implementation of O.A.G. as a matter intrinsically
related to reclassification of positions and that they
contemplated that fundamental changes could occur as a result of
same, including changes to anniversary dates. It was suggested
that the type of change, as occurred here, was consistent with
the approach reflected in the Employer’s Manual of Administ,ration
with which the union was familiar. Lastly, the employer denied
that the two grievor6 had been treated in an inequitable manner.
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I” response. it was the position of the union that the
present dispute was arbitrable as it related to placement of
employees on the salary grid. The award in Neary, 0057-88
(Ssltma”) was relied on in this regard. The representative for
the union argued that O.A.G. did not constitute s system of
reclassification in the traditional sense ss the positions
themselves did not change upon its implementation. Rather, it
merely constituted a new, and indeed novel, system to “price” the
work performed by office and clerical employees. We were
therefore urged to find that any reliance placed on the Manual of
Administration provisions relating to reclassification wss
misplaced. Fundamentally, it was the position of the union that
it wss inequitable to alter the anniversary dates of these
grievers. From its perspective, the employer should have
continued to utilise the former dates for purposes of determining
their progress through the new salary structure.
The collective agreement, excluding the O.A.G. appendix,
does not contemplate what treatment should be accorded to
anniversary dates upon a reclassification as occurred here.
While Article 5 does speak to the subject of anniversary dates,
it does so in the context of promotions. The parties appeared to
agree that what transpired in this instance wss not s promotion.
We would similarly agree with this assessment given the
definition of promotion as found in Article 5.1.1. This article
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envisages s change in both position and class. The grievor6 in
this case remained in their former positions subsequent to the
implementation of O.A.G. From the submissions presented, it does
not appear that either the position title or job duties were
amended in‘sny material sense upon the introduction of O.A.G.
A close review of the O.A.G. agreement similarly
discloses that the parties did not direct their attention therein
as to what effect the new system would have on existing
anniversary dates. Indeed, this was conceded by the respective
representatives at the hearing. While the document speaks to s
variety of issues, we have been unable to find any provision
which will assist in the resolution of this dispute. TWO
clauses, however, merit specific mention. These read as follows:
4.3.3. An employee to whom this provision applies shall
continue to be entitled to salary progression based
on merit to the maximum salary of the salary range
thus established, including the revision set out in
Article 4.3.2.
3.6.1. If the union identifies issues of concern, during the
period of implementation of the Office Administration
Group Job Evaluation Plan, the parties shall meet to
discuss such issues, provided that meetings occur not
more frequently than once every two (2) months.
The union did not sssert that the first of the above-cited
articles reflected an intention to continue with the pre-existing
anniversary dates. We think that if such effect had been
intended, more precise lsngusge would have been chosen to achieve
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E
the objective. As it stands, the language simply serves to
maintain the system of salary progression based on merit. It
does not refer to either the retention or alteration of
anniversary dates. The second article cited is of some
significance, in that it provided for a mechanism to commence
discussions on issues of concern to the union. The Board was not
informed ss to whether this option wss employed vis a vis the
subject of snni verssry dates.
The Board has also reviewed the excerpts provided to us
from the Manual of Administration (Exhibits 4, 9, 9(s)). While
the policy in respect of upward reclassification contemplates the
change of anniversary date in certain circumstances, it is fsr
from clear that they would have yielded such result in this
instance. This uncertainty stems from the fact that these
policies and procedures do not appear to have been prepared with
O.A.G. in mind. As they pre-date O.A.G., they do not accommodate
certain of its unique features, such as the retroactive
application. While the Board is inclined to agree with the
employer to the effect that O.A.G. was designed to reclassify
employees, we cannot say with any degree of confidence that the
union was, or should have been, aware that anniversary dates
would be changed on its implementation. In summary, and for the
reason given, we have not found the contents of the Manual of
Administration to be particularly helpful.
The Board is of the view that the approach taken in the
Dickie award should be similarly applied to the case now before
us. In Dickie, the grievor alleged that he had been improperly
denied a merit increase. The employer had, in effect, delayed
such increase by extending the grievor’s anniversary date from
February 1, 1984 to May 1, 1984. This action was taken as the
grievor had been sway from the work place due to sickness for a
period in excess of one hundred days. As in this case., the
grievor wished to hsve,the merit increase as of the original
anniversary date. After considering section 18(l) of the Crown
Employees Collective Bargaining Act, the Board sustained the
employer’s objection as to srbitrsbility. It stated at pages 5-6
of the award:
“Clearly, the foregoing indicates that the ‘merit’
system’ is something which is a ‘exclusive function
of the employer to manage.’ Further, the final words
of that section appear dispositive of the present
matter, i.e., that ‘such matters will not be the
subject of collective bargaining nor come within the
jurisdiction of a board.’ In this regard, reference
must (be) had to Section l(l)(c), which clearly
indicates that the word ‘board’ covers the present
board of arbitration which is established pursuant
to this Act. - Obviously, the request of the union
asks us to determine the way in which the employer
has managed the merit system which is established.
This, in our opinion, is something we cannot do.
All the right the union has with respect to this
system is to have the ability to review ‘the governing
principles’ of this plan with the employer.”
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While the reason for the adjustment of the grievers’
anniversary dates in this instance differs from that found in
Dickie, we think that fundamentally the ultimate issue wss
virtually identical, for in both cases the grievance challenged
the right of the employer to change an anniversary date in a way
which adversely affected progression through the merit system.
Further, the grievers in both awards essentially claimed the same
relief, that is, the re-establishment of the original snniverssry
date and compensation therefrom.
The Board has been persuaded that the dispute now before
us concerns the application of the merit system subsequent to the
implementation of O.A.G. We therefore conclude, as did the Board
in Dickie, that we lack the authority to provide the relief
claimed. Additionally, we have found the collective agreement
and the O.A.G. agreement to be silent on the point in issue. The
union has not been able to demonstrate that a specific provision
of either document has been violated by the employer in this case.
We therefore find that we are without the necessary jurisdiction
to make the order requested. The Board notes that this logic was
similsrly.employed by the psnel in OPSEU (Union) and Ministry of
Educstioo, 1398-84 (Brent).
The Board wss referred to the Neary award in support of
the union’s position. The panel there found that the
proscription against bargaining and arbitration with respect to
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matters of appointment has no spplicstion to placement of
employees on the salary grid. It concluded st page 7 of the
award that:
“Management has responsibility for placing
employees on the salary grid in the course of
administering the pay provisions of the
collective agreement and at least to that
extent the issue raised in the grievance is
srbitrsble.”
We think that this conclusion must be interpreted within the
fsctusl context present in that case. It did not concern s
matter relating to adjustment of anniversary dstes. Rather, the
dispute focused on differential treatment accorded to two
employees with respect to their placement on the salary grid.
This Board views the situation in Nesry as distinguishable from
the present complaint.
For all of the above reasons, this grievance is
dismissed,
‘_
DATED at Windsor, Ontario, thia,l7khdsy of Msy , 1989.
I. Cows”, Member U
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