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HomeMy WebLinkAbout1988-1257.Campbell.90-10-31 . :4. '" ONTARIO EMPLOYES DE LA COUROtVNE ' :' ~'' "~'' CROWNEMPLOYEES DEL'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 186' OUNDAS' STREET WEST. TORONTO, ONTARIO. MSG lZ8 - SUITE 2100 TELEPHONE/TEL~'PHONE 180, RUE DUNDAS OUEST. TORONTO, (ONTARIO} M5G ~Z8 - BUREAU 21~ (416) 5~8-0~8 1257/88 IN THE MATTER OF AN/%RBITRATiON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before, THE GRIEVkNCE SETTLEMENT BOARD BETWEEN OPSEU (~ampbell) Grievor - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFORE: J. Samuels Vice-Chairperson J. solberg Member A. Merritt Member FOR THE T. McEwan GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE J.L. Thomso%~ EMPLOYER Couns e 1 Hicks Morley Hamilton Stewart ~ Storie Barristers & Solicitors HEARING: April 14, 1989 September 27, 1989 September 18, 1990 2 The four grievors are all. of the Ministry's Elevator Contract Coordinators. They were classified as Elevator Inspector 1, and they grieved that they were imprOperly classified. They claimed classification as Services Supervisor 2. In an award issued in late 1989, we upheld the grievances and ordered that the grievors be reclassified as Services Supervisor 2 as of November 1, 1987, and that they should be put in the financial position they would have been in had they been so classified since November 1, 1987. We reserved our jurisdiction to deal with any .matter arising out of the order. And such a matter has arisen. The Ministry reclassified the grievors as of November 1, 1987, and placed them at the first salary level which was higher than the salary they. were earning as Elevator Inspector 1 on November 1, 1987. This salary level happened to be level 1 of the three levels in the Services Supervisor 2 classification. Thereafter, th~ grievors were considered to have received the normal salary increases; moving up a level each anniversary until they reached the third and highest level in November 1989. Their retroactive pay was based on this progression. The Ministry based its calculation on the salary progression used in the case of promotion. Article 5.1.1 of the collective agreement says that' "Promotion occurs when the incumbent of a classified position is assigned to another position in 'a class with a higher maximum salary that the class of his former position". Article 5.1.2 of the agreement then says that "An employee who is promoted shall receive that rate of pay in the salary range of the new classification which is the next higher to his present rate of pay .... (except in certain circumstances)". The grievors say that this method for calculating the retroactive pay was incorrect. In 1986, when their positions were created, they all moved from the top level of the salary range for their then-classification, Elevator Mechanic 2, to the. top level of the salary range for their new classification, 'Elevator Inspector 1. They now argue that, when they were reclassified as of November 1, 1987, to Services Supervisor 2, they should have received the top level of the salary range for the new classification immediately. This was not a matter of promotion, but rather reclassi.fication. The grievors had not been moved to new positions in a higher class. They had remained in their same positions, but this Board had determined that those pos!tions ought to be reclassified. The Union relied on Sturch, 611/86 (Forbes-Roberts), where the grievors were reclassified from Court Reporter 1 to Court Reporter 2, on the basis that the'job Specifications for the two classifications were virtually identical. There was "a distinction without a difference between the two gradings" and therefore the grievances were allowed (at page 2 of the award issued January. 7, 1988). When the Employer moved the grievors from Court Reporter 1 (level 4) to Court Reporter 2 (level 1), the Board was reconvened to determine whether this movement was correct. The Board now held that the grie,ors should be placed at the same level in the Court Reporter 2 g/id as they occupied in the Court Reporter I g~id, because the two classifications (and, consequently, the two grids) were in fact identical. "Court Reporter I, level I=Court Reporter II, level I ..... etc throughout the series" (at page 2 of the award issued March 23, 1989). The Union was prepared to call evidence now to show that the grievors' jobs did not change from 1986, nor did their qualifications and experience. Therefore,. it was argued, there was no need to put the grievors through a period of "merit increases''. They were fully qualified at the outset and should have received the top salary level. -The Ministry argued that this evidence was irrelevant, and, in any event, was not prepared at our hearing to deal with the question of the job content in 1986 and 1987. After some consideration, we informed the parties' that it was unnecessary for us to hear any further evidence. Our earlier decision was based on extensive evidence from the parties. Our understanding from that evidence, and recorded in our decision, is that the grievors' jobs had not changed after the positions were created in 1986. And there had not been any evidence at our.hearings in' 1989 about further training by the grievors, nor any need for it suggested by the Ministry. Hence, in our view, the Union's view of the facts is correct, and there is no need for further evidence. We will consider this new matter on the basis that the grievors were fully qualified in their positions as of November 1, 1987. In our view, firstly, the Sturch award is not applicable in our case. Sturch was based on the very unusual (perhaps, unique) circumstance where the Board has found that two different class standards are in fact identical. That is certainIy not our situation. The standards for Elevator Inspector 1 and Services Supervisor 2 are not the same. The griewors were inappropriately classified in the former and fit within .the latter. Secondly, the issue raised is a matter w. ithin our jurisdiction. Section 19(1) of the'Crown Employees Collective Bargaining 'Act"says th'at any matter concerning the "application" of the collective agreement can be referred to this Board. The wage levels are a part. of the collective agreement. They were bargained by the parties. Questions concerning their "application" c.,an be referred to us. Thirdly, as the Union argued, this is not a matter of promotion, but rather reclassification. The grievors had not been moved to new positions in a higher class. They had remained in their same positions, but this Board had determined that those positions ought to be reclassified. Therefore, the rules concerning salary progression upon Promotion do not apply. The issue before us is--where in the salary, grid for Services Supervisor 2 would the grievors be best fitted as of November 1, 19877 They were promoted into their new positions in t986. Had they been classified as Services Supervisor 2 at that time, it would have been 5 proper to pay them according to level I, pursuant to Ailicle 5.1.1 of the collective agreement (this level would have been higher than the pay they were receiving as Elevator Mechanic 2, and, parenthetically, would have been higher than the pay they received as Elevator Inspector 1). By November 1, I987, they would have been at lextel 2 on the Services Supervisor 2 grid. That is where'they should have been placed when reclassified according to our initial order. Once correctly classified, they ought to be paid at the level they would have been paid had they been correctly classified from the outset. Thus, in calculating the retroactivity, .the Ministry should have considered the grievors to be at level 2 of the Services Supervisor grid as of November 1, 1987, and to have progressed normally thereafter, reaching level 3 on November 1, 1988. 1 t7 We will remain seized to deal with any other matter arising out of our initial order and the clarification contained in this award. Done at London, Ontario, this 3]st day Of October , 1990. J. W. Samuels, Vice-Chairman "I DISSENT" (Dissent attached) J. Solberg, Member A. Merritt, Member l Dissent from: Janet $olberg Union Nominee Reference: OPSEU (Campbell) and The Ministry of Government Services ~1257/85. Let me begin this dissent by giving credit to the Board for fashioning a more reasonable and fair result than that which gave rise to this grievance. Having said that, t must still disagree with the award. The Ministry reclassified the grievors as ordered by the Soard and placed them at the first salary level higher %ban the salary they were earning in their ~revious classification. This was consistent with Ministry policy on ~romotions. The Board rightly found that use o4 the promotion article by the Ministry was ina~mro~riate.under the circumstances since 9~ievors were not ~romoted but rather, reclassified. In the 8card's words: "Therefore, the rules concerning salary ~rogression upon mrOmotion do not I am therefore puzzled by the Board's use of exactly the same clause, albeit with a different calculation, to reach its own decision. Surely, what is inap~opriate ~or the Ministry is equally ina~mropriate for the Board. The Board alsg dismisses the relevance o~ the Stu~'o~case. In that case, the Board found that "on both the class standard and usage tests, the. classifications had a distinction without a difference." ~nd on that basis, the reclassification was aNarded. Now, in the instant case, I agree that 'the class standards of an ~ievator Inspector a~d Services Supervisor are clearly different. Bu~ the 3ob s~eclfication ~or these employees has not changed. And the ~turch a~ard s~eaks directly to that point: "This is not a case in which the grievors are assuming new and more complex tasks at which it may well take time to become mroficient." Thus, I think an interpretation of the sturch case based solely on class standards is unduly technical and limited.. In my view, the ~D.r. ch case may easily stand for a much proposition namely that, in the circumstances of a ~ecla~siflcation, ~here the job s~ecificatio~ remains the same and w~ere no new ~uali~ications and training are required, an employee should be ~laced on the equivalent ste~ o~ the salary grid. This seems tO me ~e!l within the s~irit and, more im:ortantly, %he intent of the Sturch precedent.