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Home My WebLink About1988-0093.Kay, Milak, McCauley, Truchon et al.95-06-05 ONTARIO EMPLOY=~$ DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT RI GLEMENT BOARD DES GRIEFS. 180 DUN~S STRE~ WES~ SUrE 21~ 70RON~ .ON MSG I~ TE~PHONE/T~PHONE : ~1~ 326- t~$ 18~ RUE DUNDAS OUES~ BUR~U 21~ ~RONTO ~ M5G 1~ ~CSIMI~/T~L~COPIE : ~1~ 326- t396 GSB~ 93/88, 94/88, 114/88, 115/88, 162/88, 308/88, 356/88, 580/88, 522/89, 738/89, 968/89, 968A/89,.978/89, 979/89, 1221/90, 1222/90, 1226/90, 1228/90, 1229/90, 1230/90, 1231/90, 1232/90, 1233/90, 1234/90, 1235/90, 1236/90, 1239/90, 1295/90, 1351/90, · 1940/90, 1956/90, 1957/90, 2453/90, 2640/90, 340/92, 370/92, 371/92, 372/92, 429/92, 430/92, 455/92, 456/92, 457/92, 458/92, 459/92, 460/92, 461/92, 462/92, 463/92,' 464/92, 465/92, 466/92, 510/92, 549/92,. 551/92, 552/92, 572/92, 573/92, 574/92, 575/92, 576/92, 577/92, 579/92, 580/92, 581/92, 582/92, 583/92, 584/92, 586/92, 597/92, 598/92, 599/92, 600/92, 622/92, 623/92, 625/92, 626/92, 659/92, 698/92, 700/92, 714/92, 724/92, 758/92, 759/92, 760/92, 761~92, 773/92, 830/92,' 857/92, 858/92, 920/92, 921/92, 983~92, 984/92, 986/92, 1038/92, 1472/92,-1851/92 IN THE M~TTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Kay/Milak/McCauley/Truchon et al) Grievor - and -' The Crown in Right of Ontario (Ministry of Transportation) .. Employer BEFORE: A. Barrett .Vice-Chairperson ~,, Mo Lyons. Member Ao Merritt Member. FOR THE D, Wright GRIEVOR Counsel .. Ryder, Whitaker, Wright Barristers & Solicitors FOR THE D. Costen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING June 1, 1992 RE: 93/88 etc. OPSEU (Kay/Milak/McCauley/Truchon et al) and the Crown in Right of Ontario (Ministry of Transportation) $$A824-88A842, 8BABO2-8~A823, 88A$7U-88A879, 88A880-88A881,' 88A996/$SA997, 88B156, 88B261, 88B638, 89C477, 89C477, 89C993, $gD301-$9D302, 89D308, 89D306-89D307, 90C971-90C972, 90C974~90C978, 90C994-90C995, 90C997, 90C998, 90C999, 90D001, 90D002, 90D003, 90D004, 90D005, 90D006, 90D01t-90D012, 90Dl14-90D129, 90C943, 90D822, 90D991, 90D992, 91A332-91A335, · 91A526-91A532, 92B812, 92C365-92C373, 92C374-92C383, 92C384-92C385, 92B856-92B869,.92B833-92B855, 92D010-92D012, 92B984-92B988', 92B989-92B990, 92B991, 92B992-92B993, 92C460-92C462, 92C472, 92C466-92C471, 92C463-92C465, 92C459, 92C473-92C475, 92C451-92C458, 92C505, 92C564-92C579, 92DO55-92D063, 92DO42-92D054, 92ASO0-92AS02, 92A805-92AS07, 92A794, 92A973, 92A792, 92A791, 92A798-92A799, 92A797, 92A796., 92A795, 92A816, 92A815, 92C582-92C600, 92D108, 92D104-92D107, 92D102-92D103, 92D095-92D0~8, 92C615, 92C6!4, 92C6~2, 92C611, 92C638-92C649, 92D156-92D157, 92D161, 92C716, 92D177-92D183, 92C731, 92C730, 92D170-92D176, 92C749, 92C756, 92C779-92C782, / 92C798, 92C797, 92C827-92C837', 92C838-92C894, 92C937, 92C932-92C936, 92C939, 92C968, 92F259, 92F67'0-92F675 DECISION This case proceeded to a hearing on June 1, 1992, based upon an Agreed Statement of Fact which is reproduced below: " G.S.B. File No. 1221/90 IN THE MATTER OF A GRIEVANCE ARBITRATION BETWEEN: OPSEU iKay, Milak et al) - and - The Ministry of Transportation Ontario 'AGREED STATEMENT OF FAC~~ 1.. This~grievance arbitration' involves 48 individual grievances which have been.consolidated on the agreement of the parties. A lis~ of individual grievors,~ including the date on which each grievance was filed, is attached as Appendix A. '2'. Each of the grievors is employed by the Ministry as either a Construction Technician or Senior Construction Technician. 3. Each of the grievous except the grievors Adams, Carter, Kilby and Noble, are employed in the South West Region of the Ministry. The grievors Adams, Carter, Kilby and Noble are employed in the Northern Region of the Ministry. 4.. A copy of the Position Specification for senior Construction Technician is attached as A~pendix B. The parties agree that this Specification is an accurate description of the job duties of each of th'e grievors employed as a Senior Construction Technician. 5. A copy of the Position SPecification f.or ConstrUctionLTechnician is a~tached as Appendix C. The parties agree that this Specification is an accurate description Of the job duties of each of the grievors employed as a Const'ruction Technician. 6. The Senior. Construction Technicians are classified at the Technician t Construction level. The Construction Technicians are classified at the Technician 3 Survey level. A copy of the relevant class standards are attached.as Appendixes D & E respectively. 7. Each of the grievors allege that they are improperly... classified. 8o The parties have agreed that the grievors are improperly classified. The only issue between the parties is the date to which tke grieuors are entitled to be retroactively reclassified. 9. On January 28, 1988, the first of a group of grievances was filed by Construction Technician and Senior Construction Technicians who were employed in the. Northern Region of the Ministry. These grievances were ultimately consolidated by the parties and came before the Board for hearing' on Decemberr 12, 1989 as McCauley/Truchon et al. 10. The McCautey/Truchon group was comprised of' 61 greivances (sic) from 59 grievors. 24 of the grievances were filed on January 28 and 29, 1988. An additional 18 were filed on February 11, 1988. A further 12 were filed between April 8 and 15, 1988. 3 were filed on May 5 and 6, 1988 and 2 were filed in June 1988. The final 2 grievances ~in the group were filed in June 1989. These grievances were from individuals who had originially (sic) been promoted to Senior Construction Technician and filed further grievances. i'1. On January 22, 1990, the Board issued its decision in the McCauley/Truchon case and ruled tha~ the grievors' were .improperly. classified. The Board 'brdered the employer to reclassify the grievors 'applying the twenty- day rule with respect to retroactivity and interest' The issue of the salary to be paid to the resulting new classifications is currently scheduled for interest arbitration under Article 5.8 of the collective agreement. 12. The grievors in McCauley/Truchon were employed pursuant to the identical position descriptions found at Appendixes A and B. The parties were in agreement that these position descriptions accurately described the job duties of the McCauley/Truchon grievors. 13. Pursuant to the McCauley/Truchon de~ision, the Ministry agreed to reclassify all Senior Construction Technicians and Construction Technicians in the province, regardless of whether or not a grievance had been filed. The Ministry stipulated that the reclassification would be retroactive to 20 days pribr.to the decision of the Board in McCauley/Truchon. 14. On February 9, 1990, a grievance alleging improper classification was filed by Mark Hillman, a Senior Construction Technician employed in the Northern Re?ion of the Ministry. Mr. Hillman was also employed pursuant to the Position Specification found at Appendix A. The Ministry agreed that Mr. Hillman was -improperly classified and was prepared to reclassify Mr. Hillman retroactively to 20 days prior to the date of the decision of the Board in McCauley/Truchon. Mr. Hillman took the position that he was entitled to be retroactively reclassified to 20 days prior to the first of the McCauley/Truchon grievances. 15. This matter came on for hearing before this·B°ard on October 31, 1990. On November 22, 1990 the Board released its decision on the Hillman grievance and ruled that Mr. Hillman was entitled to be reclassified 'with ~ the same retroactivity granted in' McCauley/Truchon. 16. For the purposes of this preliminary motion, it is .agreed that the Union made no specific representations, either positive or negative, to the Ministry.as to the issue of whether or not any of the grievors in this group was properly classified, until the date that ~each individual grievance was filed. ·· 17. The Ministry employs a number of Construction Technicians and Senior Construction Tecknicians who are not covered by either the McCauley/Truchon ·group or the .group of grievances in the instant case." The argument revolved around the interpretation and applicability of the Hillman decision. Mr. Hillman was ordered be reclassified "with the same retroactivity granted in" McCaulev/Truchon. In McCau!ey/Truchon all of the grievors got retroactivity pursuant to the 20-day.rule. However, the reasoning in the Hillman case appeared to support a departure from the 20- day rule and provide the grievor with retroactivity for about one year prior'to the filing of his grievance. We expressed concern at the hearing about the ambiguity in Hiltman and wondered aloud why the 'Hillman panel was not being asked to resolve the ambiguity. Subsequently on July 3, 1992, we received a letter from Union counsel advising that he had been instructed to seek hearings before the panels which heard both the McCauley/Truchon et al and Hillman oases in order to resolve the dispute between the parties which has arisen with respect to the~question of how those awards ought properly to be implemented. Counsel asked us to delay our decision~pending the resolution of the McCaulev/Truchon et aK and Hillman cases. This~we did. On July 22, 1994, Union counsel again wrote to. this panel to advise that hearings had been scheduled before the earlier panels for a January 20, 1993, hearing, but the parties had agreed to adjourn that hearing pending the outcome of a judicial review in Jansson et al, GSB ~1888/89 (Gorsky),'L"which dealt with a substantially similar issue. The Divisional. Court decision was released in April, 1994, and it upheld Jansson and implicitly overr~uled Hillman. In light of that decision, counsel asked us to issue our decision with respect to-this case without further argument. Further delay ensued because counsel did not provide us with the Divisional Court decision until recently. Although the Jansson panel had distinguished Hillman rather. than finding, it manifestly wrong, it appears that the Divisional Court went further and explicitly rejected the Union argument which was successful in Hillman. rat pages 2 and 3 of its decision, the Court said: "The submissions of the union counsel, before this court, appeared to fly in the face.of th~se [labour relations] realities. For example, the argument that the re-classification in 1987/88 alone amounted to an admission by the employer of earlier' job parity, taken to its~logical conclusion, could mean any re- classification in relation to wage harmonizationt amounts to an admission that such an adjustment should be made retroactive to the adve~t of all affected jobs." We are bound by this' decision. Accordingly, upon. the Agreed Statement of Facts in this case and in light of 'the Divisional Court decision, these grievances must be dismissed. Dated at Toront° this 5~h day o~ June, 1995. s. ,yons,{ Me.er / ' A. Merritt, Member