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HomeMy WebLinkAbout1990-1448.Williams & Barber.91-02-05 ONTARIO EMPLOY~'S DE LA COURONNE CROWN EMPLOYEES DE I.'ONTARIO GRIEVANCE C,OMMISSlON DE - SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEIPHONE/T~&~.PHOfvE~. (4 T6) 326- 1~0, RUE Z:~JNDA$ OUEST, BUREAU 2;00, TORONTO {ONTARIO). MSG iZ8 FACSIMIrLE/TEL~'COPIE : [416) 326-1396 1448/90, 1449/90, 1466/90 IN THE I~TTER OF AN ~RBITi~TION Under THE CRO~N EHPLOYEES COLLECTIVE BARGAINING ACT Befo~e THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Williams/Barber) Grievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: J. Samuels Vice-Chairperson G. Maj esky Member F. Collict Member FOR THE A. Ryder ~RIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE J. Ravenscroft EMPLOYER Staff Relations officer Human Resources Management Ministry of Correctional Services HEARING: January 2, 1991 The grievors are correctional officers at Camp Dufferin. They all joined the institution as unclassified staff, being paid through their various limited-term contracts at the lowest level for a CO1 (there are two levels for this classification); then were appointed to the classified staff as CO 1 s, again being paid at the lowest level for this classification; and then, after the completion of their training, were promoter[ to CO2, being paid at the lowest level for this new classification. They complain that they were not paid properly under the collective agreement. The complaints began with Mr. D. Willi~as. He had commenced his employment with the Ontario Government in April 1983, as a seasonal worker with the Ministry of Natural Resources. The last of his seasonal contracts began on April 1, 1986. This was the date on which he began a period of unbroken service with the Government, which continues. On August 21, 1986, he moved to Camp Dufferin as an unclassified employee with the Ministry of Correctional Services, being paid through a series of limited-term contracts at the lowest level for a CO1. In each successive contract, except for the last one which covered a period commencing July 2, i988, Mr. Williams was described as a "casual, irregularly scheduled pan-time employee". However, this description was not accurate. In fact, at all times he worked the hours of a full-time employee. Apparently, at the time, it was not certain that Camp Duffer/n would remain open as a Ministry facility and therefore the Ministry was not engaging personnel in the full-time classified service. Mr. Williams remained at the same pay level (first step CO1) because of the Ministry's practice to hire unclassified officers always at the minimum rate of the appropriate classification, no matter how many times the officer is reengaged through successive limited-term contracts. At Camp Dufferin, there are some unclassified empl.oyees who are hired on a 3 "full-time" basis---cooks-and office staff, for exampleBand they do receive merit increases. But officers are hired as "irregular part-time", and therefore do not receive increases, even though 'they may in fact work full- time hours. On August 29, 1988, Mr. Williams was appointed to the classified service, continuing at the same pay level. Almost immediately after this appointment, Mr. Williams made attempts to have .the Ministry record for him a continuous service date which took into account his time with the Ministry of Natural Resources~ In his view, various benefits would flow if he received this credit and an earlier continuous service date--such as a higher pay rate, a greater vacation entitlement, greater seniority for bumping purposes, and so on. Being dissatisfied with the employer's response, on September 19, 1988, he grieved' that his date of commencement of continuous service was incorrect. This grievance was settled "without precedent or prejudice", and was signed on behalf of the Union, the Ministry, and the grievor. The settlement 'provided that Mr. Williams' length of continuous service would commence from April 1, 1986. Now, almost immediately, Mr. Williams turned his attention to his rate of pay. He enquired of management what would be his rate of pay in light of the settlement. During all of this activity, Mr. Williams completed his training for promotion to CO2. On August 31, 1989, the decision was made by Mr. P. Downing, the then Area Personnel Administrator, that Mr. Williams would be treated as having become a CO2 effective August 29, 1988 (which was the date on which he joined the classified service, before he had completed his training), and from that date would be paid the lowest rate in the CO2 scale. It is interesting to note that, in his memorandum recording these measures, Mr. Downing referred to Mr. Williams' continuous service date as August 21, i986, thOUgh by the time of his memorandum it appears that 4 the settlement had been reached, providing thai: Mr. Williams' continuous service date would be April 1, 1986. '. Thus, as of August 29, 1988, Mr. Willi~h-ns commenced receiving CO2 pay at the lowest level for that classification. It appears that this was unusual, because normally a correctional officer does not receive pay as a CO2 until the officer has completed the required training. We accept the testimony of Mr. D. Mackay on this point. He is now the Area Personnel Administrator concerned with Camp Dufferin. He said that he interpreted the appropriate entry in the Ministry's Personnel Policy and Procedures Manual to mean that promotion to CO2 required three qualifications one year's service (which could include continuous, unbroken, full-time, unclassified service), all requirements of the position have been met, and the prescribed ministry training program has been successfully completed--and that this policy so interpreted, is in fact the Ministry's practice. In support of Mr. Mackay's evidence, we know that the five other grievors--Messrs. Barber, Miller, Newhook, Sinclair and Traviss, ali of whom commenced their service with the Ministry about the same time as Mr. Williams, and completed their training about the same time-- did not begin receiving pay at a CO2 rate until they had completed their required training. In spite of the developments so far, Mr. Williams was not yet happy. In his view, he ought to have received an increase in pay level before August 29, 1988. On September 28, 1989, he wrote to Ms. J. Broadbent, the Office Administrator at Camp Dufferin, requesting that all of his continuous, unbroken, full-time unclassified service be credited for purposes of merit increases and that, accordingly, he receive CO2 first level pay as of April 1, 1987; CO2 second level pay as of April 1, 1988; and CO2 top level pay as of April 1, 1989. At l?fis point in time, he was not yet aware that there were two CO1 pay levels. He learned that there were two CO1 pay levels on December 27, 1989, and immediately 5 enquired whether he should have received a merit increase to the second CO1 level after one year's service as a CO1. There was no real response to this new flurry of requests and enquiries, so on April 4, 1990, he wrote to Mr. M. Stephenson, the Administrator of Camp Dufferin, requesting a retroactive merit increase to the CO1 top rate for the period August 21, 1987, to August 29, 1988 (this was his second year as a CO1 employee, working full-time hours). He also requested the consequent retroactive adjustments and compensation in his pay as a CO2. It would be useful at this point to explain the consequent retroactive adjustments and compensation in his pay as a CO2. If, when he was appointed to CO2, he was. already receiving pay at the second level CO1 rate, then, immediately upon appointment to CO2, he would have to be paid at the second level CO2 rate; according to Article 5.1.2 of the collective agreement. This article provides 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". The second level CO1 rate is higher than the first level CO2 rate. Therefore, on a promotion from CO1 to CO2, the officer would have to be paid at the second level CO2 rate. On May 9 or 10, 1990, the Ministry denied Mr. Williams' request for the CO1 second level rate and consequent adjustments, and in short order Mr. Williams commenced the grievance before us, claiming a retroactive merit increase to the COl top rate for the period August 2I, 1987, to August 29, 1988, and the consequent retroactive adjustments and compensation in his pay as a CO2. The other five grievors complained after they learned in earIy 1990 that Mr. Williams was being paid more than they were, though they had commenced employment with the Ministry around the same time as Williams, and some had fmished their training before Williams. They say that there should be equal pay for equal work, and they want what Williams has. They registered their concems and began their grievance processes with all due diligence after they learned about Williams' situation. Management was slow to respond to the five men. When the reply came, essentially it was that Williams was 'treated specially because of the settlement of his earlier grievance and the fact that Williams was treated as having become a CO2 on the day he joined the classified service (which was before he had completed his gaining). When the five grieved, they were not aware that Williams was already asking for even more than he was receiving in early 1990. But their grievances remain the same-- whatever Williams gets, they want. At the outset of our hearing, the Ministry raised two preliminary objections. Firstly, it was argued that the grievances are untimely. In all cases, the claims were made long after the pay periods in question, and long after the grievors ought to have been aware of their problems. Secondly, it was argued that this Board has no, jurisdiction to determine merit increases. The Ministry has decided that unclassified officers get no merit increases, and this decision is within the exclusive authority of management, In our view, neither of these objections is well-founded. Firstly, with respect to the timeliness of the grievances, Article 27.2.1 of the collective agreement provides that an employee "who believes he has a complaint or a difference" shall raise il: "within twenty (20) days of first becoming aware of the complaint or difference". There is no doubt, from the testimony at our hearing, that the grievors did make their complaints known "within twenty (20) days of first becoming aware of the complaint or difference". 7 But the Ministry argues that, according to Graham, 981/86 (Ratushny), the time begins to mn as soon as an employee is aware of the facts upon whicl~ the grievance is based, whether or not the employee subjectively "believes" that he has a complaint or difference (from page 4 of the case). And this point was supported by the Board in Gembora, 930/89 (Dissanayake). The Board said that the time begins to run even though the employee is unaware of a statutory provision, regulation or term of the collective agreement which would form the basis of the grievance. In our case, the Ministry argues that the grievors knew their rates of pay, and the time would begin to run from the receipt of the pay cheques, even though at the time they did not know that there was a second level COl rate. With great respect, we differ from the decisions in Graham and Gembora, and prefer the line of reasoning in Pierre, 492/86 (Verity), which was appealed to the Divisional Court and was upheld, the Court expressing its agreement with the Board's decision. In Pierre, the Board emphasized that Article 27.2.1 speaks of the subjective knowledge or awareness of the grieving employee. The time for grieving does not commence until an employee "believes" he has a complaint. This is not the "belief' of the reasonable man, but the feeling of the grieving employee himself. And the article speaks of the employee "becoming aware of the complaint or difference" (emphasis added). It's not the awareness of the facts which could give rise to a complaint or difference that matters, it's the awareness of the complaint or difference itself. This is a subjective matter, and depends upon the employee being aware that there is a right under the collective agreement. The Board in Pierre (at pages 14-15) adopted the reasoning of the earlier decision in Mitchell and Union, 1614 and 1615/85 (Samuels), wherein it was said (at page 6 in Mitchell and union): 8 .... the time does not begin to run until the employee is aware that there is a complaint or difference under the collective agreement. Her complaint or difference in this .sense is not being declared surplus, or being laid off, but her feeling that she has not been treated according to the collective agreement. (ernphasis in the original) As the Board in Pierre put it (at page 16), the time did not begin to run until the grievor had the knowledge or belief' "that her concerns were amenable to resolution under the Collective Agreement". In similar vein, in our case, the time did not begin to nm until the grievors believed that they were not being treated according to the collective agreement. This required that they knew how they were being treated, and they knew the terms of the collecfiw~. agreement. The purpose of the grievance process is to resolve real complaints or differences between the parties, in order to promote a harmonious workplace. Problems fester when employees have no avenue: for redress of complaints or differences. And complaints or differences do not surface until the aggrieved employees becomes aware of the problems. Given the purpose of the grievance process, there is necessarily a subjective element in the time limits provided for commencing the process. As Article 27.2. i puts it, first the employee must "believe" he has a complaint, and then he must launch his grievance process within twenty days "of first becoming aware of the complaint". In our case, the grievors acted as promptly as Article 27.2.1 requires. Now, with respect to the preliminary objection conceming the Board's jurisdiction, the Ministry argued that the grievances deal in substance with the "merit system", and this syste, m is within the exclusive jurisdiction of management, pursuant to section 18(1)Co) of the Crown Employees Collective Bargaining Act. Section 18(1)(b) of the Act 9 provides that "it is the exclusive function of th'e employer to manage, which includes the right to determine, .... merit system, .... the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not ..... come within the jurisdiction of a board". In Dickie, 314/85 (Palmer), and Robinson, 458/88 (Verity), the Board held that it could not enquire into a decision by the Employer to deny a merit increase. However, in our view, this is not a case involving the merit system or a merit increase. This is a matter of pay administration. The parties have the right to negotiate a grid with various pay levels. Indeed, this is perhaps the most basic collective bargaining right. And they negotiated a grid with two levels for the CO1. They intended that employees would move from level to level in a generally predetermined way. Employees cannot simply be placed on the grid in some serendipitous way by management, according to its whim. This Board has already dealt with the same preliminary objection in a case involving this Ministry, and has made this point before. In Baylis, 1762/89 (Samuels), we said (at page 2): .... the Ministry's first objection is based on the argument that, at the time of hiring, the Employer has full discretion to place an employee anywhere on the salary grid. Support for this argument is found in Wilson, Robinson and Gleadhill, 458/80, 525/80 and 526/80 (McLaren). However, in a more recent decision, the Board has drawn a distinction between appointment and placement on the salary grid, and has said that the latter is arbitrable because it is a matter of administration of the pay provisions of the collective agreement Neary, 57/88 (Saltman), at page 7. In our view, Neary is correct. The parties have a collective agreement establishing the salary rates. Though management has wide powers in 10 the matter of placement of employees on the salary grid, and therefore there are few opportunities for an employee to grieve placement successfully, nonetheless, placemen~t on the salary grid is a matter of administratiOn of the collective agreement. And, pursuant to Section 19(1) of the Crown Employees Collective Bargaining Act, a difference concerning the administration of a collective agreement may be referred to this Board for determination. In our view, we have jurisdiction over the grievances before us, because they raise a matter of pay administration, which is within our jurisdiction, pursuant to section 19(1) of the Act. Has the Ministry violated the collective agreement in these cases? Article 3 of the collective agreement governs the treatment of unclassified employees. The critical provision is Article 3.3.1, which deals with the pay rates for these employees and says that "The rate of the equivalent civil service classification shall apply". In our view, this means that the unclassified employee should be paid the same rate as the classified employee who is doing the same work. In Wilson, Robinson and GleadhiII, 458/80, 525/80 and 526/80 (McLaren), the Board held that it was sufficient if the employer placed an unclassified employee somewhere in the range of rates for the equivalent civil service classification (at pages 4-5). But, as the Board said in Baylis, in our view, Wilson is wrong on this point. In like vein, in McCulIoch, 2080/87 (Wilson), the Board did not accept a salary rate .just anywhere in the range of rates for the equivalent civil service classification. .The mason for the various levels of pay in each classification is to recognize the increasing worth of an employee as the employee becomes more experienced in the work of the classification. If an employee has done a job for one year, this employee ought to be able to do the job better, to be more. productive,~ than an employee who is new to the job. In recognition of this, the parties negotiate a higher rate of pay for the more experienced employee. Given this point, it does not seem right that an unclassified employee, hired repeatedly in an unbroken string of service, who is in fact doing a full-time job, should continue to receive the same level of pay no matter how experienced the employee becomes. Should the grievors have received the second level CO1 rate after one year's service as unclassified correctional officers? The only hitch in the gfievors' claim is that, in the classified service in this Ministry, there are no correctional officers who are paid at the second level CO1 rate. This is because, if a correctional officer is classified, he remains at the CO1 rate only until he finishes his training for the CO2 classification, and this occurs almost invariably before he begins his second year of service. Thus, within one year of appointment to the classified service, a correctional officer in this Ministry is promoted to CO2. Nonetheless, in our view, the basic scheme established in the collective agreement and its wage rates ought to be observed. The parties negotiated a second level CO1 rate. This demonstrates the intention to reward greater experience with greater pay. Normally, unless there is an adverse performance rating, an employee would move UP a level in the same classification after one year's service. This is possible for the unclassified CO1, who may remain in the classification for a significant period of time. Therefore, we order that, for each of the six grievors, he ought to have been paid at the CO 1 second level rate as of the commencement of the first contract of service which began after he had worked full-time for the equivalent of one full year for the Ministry of Correctional Services as a CO1. And thereafter, the grievors' pay ought to have reflected the fact that they were receiving the CO 1 second level rate as of the date stipulated in the preceding sentence. 12 The grievors should be compensated for' any amounts which they ought to have been paid and were not paid, with interest at 10% compounded annually on each sum, from the date it ought to have been paid to the date on which it is paid. ... With respect to the five gfievors other than Williams, who claim that they ought to be treated like him, we do not think it advisable to compound the anomaly created when Williams was retroactively treated as a CO2 back to a date before he had completed his training. The rank of C02 is a career rank, reserved for those employees who are qualified to perform as a C02. It does not make much sense to confer this rank on an employee who has not yet become qualified. And, from the limited evidence before us, it appears that Williams may be one of the only, if not thq only, correctional officer who was considered to have been a CO2 before he qualified for the classification. Therefore, for the five gfievors other thaza Williams, they ought to be treated as having become CO2s on the dates now recorded for them by the Ministry. We understand that these dates are the dates on which they fulfilled the qualifications for promotion to the C02 classification. 13 We will reserve our jurisdiction to deal with any matter conceming the interpretation or implementation of this award. Done at London, Ontario, this 5ch day of February , 1991. .~-J. W. S ~nuels, Vice-Chairperson G. Majesky, Member "I DISSENT" (Dissent attached) F. Collict, Member DISSENT RE: G.S.B. #1448, #1449, #1466/90, (WILLIAMS/BARB ER) This Member dissents with this award for the following reasons: 1. Article 3.3.1 of the Collective Agreement a) At page 10 of the award, the following is stated. "Article 3 of the collective agreement governs the treatment of unclassified employees. The critical provision is Article 3.3.1, which deals with the pay rates for these employees and says that "The rate of the equivalent civil service classification shall apply, hi our view, this means that the unclassified emotovee should be paid the same rate as the classified emotovee who is doinq the same work". (underscoring added) in the opinion of this Member, the underscored section above is not the meaning of the quoted first sentence in Article 3.3.1. To contemplate this meaning, i) The language would have to refer to the ran,q.e for the classification, not the rate; ii) The language would have to refer specifically that the parties meant that an unclassified employee shall be paid the same rate as the classified employee doinc~ the same work; and 2 iii) the word equivalent would have to relate in some way to "work", as opposed to equivalent classification; for a more experienced employee, working in the sam___.~e classification as another employee, may be assigned to more complicated work within the classification. The Coltective Agreement is obviously silent With respect to the above. It is clear that the award contemplates an intention by the parties to progress unclassified employees through the various rate levels of a classification (pages 10 and 11).. However, if this was the intent of the parties, surety the bargain struck in Article 3 on behalf of unclassified employees should have statecl this in clear and unambiguous language; and further, surely it is not open to the Board to surmise the intentions of the parties when, in fact, the very Union which represents the gdevors and which has negotiated the various wage steps within the many wage classifications over the years has not challenged this matter of progression for unclassified employees. It is obvious, therefore, that there was no such intent in the negotiations of · the language of Article 3.3.1 by the parties to automatically provide for wage progression through the classification range; and the Board, therefore, is left with the language to interpret, as such. A simpJe reading of the applicable language is that, "The rate of the equivalent civil service classification shall apply.. 2 And this is precisely the rate that was applied to the grievors. Certainly there is neither an implied no.__[r a specific reference in this language that the rate payable to an unclassified employee shall be the same rate as :3 Certainly there is neither an implied nor. a specific reference in this language that the rate payable to an unclassified employee shall be the same rate as for a classified employee who is doincl the same work! b) The only reference to pay a~ministration in the Collective Agreement is in Article 5; and this Article applies solely to classified employees. In fact, the Agreement does not speak to the mal.ter of wage rate progression through the range of a classification. c) At best therefore, it can only be claimed that there is ambic~uitv in the language of Article 3.3.1; and in this rasp,act the evidence is clear. The practice is to pay the unclassified Correction Officer at the minimum rate for the classification. d) To read into the language the interoretation of intention that the award contemplates at page 10, is to exceed the jurisdiction of this arbitration panel and is in contravention of Article 27.16 of the Collective Agreement. e) G.S.B. jurisprudence in #458/80 (Wilson), #525/80 (Robinson and Gleadhill), and #526/80 (McLaren) has interpreted Article 3.3.1 to the effect that it was sufficient if the Employer placed an unclassified employee somewhere in tt~e ranqe of rates for the equivalent civil service classification. This is the meaning of the first sentence in Article 3.3.1. f) In summary, in the view of this Member, there is no violation of Article 3.3.1 in this case. 4 2. wa_cie ProclressiontMerit Increases At page 9 of the award, the following is stated: "In Dlckle, #314/85 (Palmer), and Robinson, #458/88 (Verity), the Board held that it could not enquire into a decision by the Employer to 'deny a merit increase. However, in our view, this is not a case involving the merit system or a merit increase. This is a matter of oar administration." (underscoring added) However, what is' at issue in this case is a claim by t~he grievors that they did not receive regular pay progression or medt increases while functioning as unclassified employees. is this "Day admini'stration"; or is this a matter of "merit increases"? The only reference to Pay Administration in the Collective Agreement is at Article 5; and this applies solely to classified employees as they move from one classified position to another classified position. The Article has no application whatsoever to unclassified employees. Moreover, there is no reference in the Collective Agreement as to how either classified or unclassified employee progress from one levet within a classification to the next level, and so on throughout the range to the maximum rate for a classification; and there is a very good reason for this, This progression is, in effect, the merit system, which shall not be the subject of collective bargaining between the parties nor shall it come within the jurisdiction of the Board (Section 18(f), CECBA). Very clearly at the bottom of page 10 and at page 11 of the award, reference is made to wage progression through the range and it is obvious that this review of wage progression refers to the application of the merit system; and certainty the Board cannot seize jurisdiction in this case by trying an "end run" around the clear application of the merit syStem by:simply calling the issue a matter of "oay administration". ~ it is true that the parties have negotiated the pay leveis for the vadous wage steps throughout a classification range (as provided for under Section 7 of CECBA). However, by statute, the Employer has reserved to it the right to "manage" and "determine" the medt system. (Section 18(i), CECBA). Accordingly, this Board does not have the jurisdiction, as determined in Dick/e, #314/85 (Palmer) and Robinson, #458/88 (Vedty) to enquire into a decision by the Employer to deny a merit increase. It must be further emphasized that n_.~o employee, whether classified or unclassified, has a "right" to a merit increase or step progression within his/her range. Consideration may be given; but no "right", as such, has been establisheci. 3. Nearv #57188 (Saltman) and Bavlis, #1762/89 .[Samuels) The following reference from Baylis, #1762/89 (Samuels) at page 9 and 10 in the award is interesting: "...placement on the salary grid is a matter of administration of the Collective Agreement. And, pursuant to section 19(i) of the Crown Employees Collective Bargaining ACt, a difference concerning the administration of a collective agreement may be referred to this Board for determination." This member is not in disagreement with the above. However, to find jurisdiction to apply a remedy, the Board must determine that there has been a violation of a provision of the Collective Agreement; and as stated above, the only pay administration provisions in the Collective Agreement are in 'Article. 5 and these apply solely to classified, employees. Absent any contravention of the Collective Agreement, then the Board cannot manufacture a remedy. In the Neary case, the issue to be deait with was alleged discrimination; and in the Baylis case the wage issue involved alleged misrepresentation. Certainly there is an obligation upon the Employer to administer its relationships with the Union and employees in good faith and without discrimination, and the Board accordingly had jurisdiction to deal with both of these cases. However, the issues in the Neary and Baylis cases were not simply matters of "pay administration". 4. Retroactivitv' This Member also dissents with reference to the extent of retroactivity ordered in this case as set out on pages 11 and 12 of the award. In this award, the 20 day rule, a rule of discretion established through jurisprudence of the Board, has been completely ignored. Surely the Employer should not be held liable for a violation of which it had no knowledge until the grievance was filed initially or until this award was issued. Had the issue in this case been a matter under review over the period contemplated by the award it might have been reasonable to waive the 20 day rule. However, the Emptoyer only became aware of the concern of the grievor when he first filed his grievance in December of 1989; Moreover, as stated at the hearing, the Uni<3n as party to the Collective Agreement, had neg{3tiated the various wage levels for Correctional Officers with the Employer and had not at 7 any time raised an objection to the method of w~ge payment for unclassified Correctional Officers. This factor in itself, as set out above in item l(a) further substantiates the position that the parties had never turned their attention to, nor had the intention to deal with wage progression for unclassified employees in Article 3.3.1. In view of the above, any retroactive payment to the grievors should be restricted to a period of 20 days prior to the filing of the subiect grievances. 5. JurisDrudence Was there a violation of the Collective Agreement in this Williams/Barber case when Williams was assigned from unclassified to the classified service, effective August 29, 19887 In the opinion of the Member, there was no violation of the Collective Agreement for the following reasons: a) As per McCuiloch (#2080/87), Williams was assigned properly to the C.O.1 minimum rate as both McCulloch and Taylor were found to be when rates were reduced from C.O.2, second step to C.O.1, first step when they were assigned from unclassified to classified. That is what the McCulloch case stands for. b) Similarly in the McCulloch case, the fact that the grievances of Mitchell and O'Brien were upheld as unclassified employees who had their pay rates reduced from C.O.2, second step and C.O.1 maximum respectively - to C.O. I starting rate, - when MCS assumed responsibility for their department, - does not help Williams at all in our case. 8 Moreover, in McCutloch, Wilson did not uphold waee orogression for unclassified employees, In that case, he merely stated that: "... they did'not become "less equivalent" because the new Ministry decided they ought to have the training." (p. 13) His comments concerning the payment of the rate of the equivalent civil service classification are somewhat obtuse inasmuch as he merely states that: "It would therefore seem that the Ministry is not complying with Article 3.3.1 with regards to wages for unclassified staff." (p. 12) In fact, in both McCulloch and the subject Williams/Barber case, management paid to unclassified employees "the rate of the equivalent civil service classification". 6. Surnmarv In .summary there has been no violation of the Collective Agreement irt this case. In the view Of this Member the Board has exceeded its jurisdiction by becoming involved in the wage progression activity which is the merit system. The parties 'have not addressed the issue of the application of the merit system relative to unclassified and classified employees in the Collective Agreement. There accordingly has been no violation of any of the provisions of the Agreement and the grievances should be dismissed. F.T. Collict'"'--;