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HomeMy WebLinkAbout1990-1774.Page et al.92-09-27 ONTARIO EMPLOY~:$ DE LA COURONNE CROWN EMPt. OYEES DE L 'ON TA RiO GRIEVANCE C,OMMiSSION DE SETI'LEMENT REGLEMENT BOARD DES GRIEFS [80 DUNDAS STREET WEST SUITE 2~00~ TORONTO, ONTARIO, M5G ~Z8 TELEPHONEzTEL~PNONE: (a16t 325-I388 ;$0, RUE DUNDAS OUEST, BUREAU2100, TORONTO (ONTARIO), M5O tZ8 FAC$IMtLE,'TELECO~E : (~5) 325-t396 [774/90, 25[7/9Z, 2518/91, 532/92, 620/92, 833/92 IN THE MATTER OF AN ~%RBITRATION Under THE CROWN EMPLOYEES COLLECTIVE EARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Page et al) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE: W. Low Vice-Chairperson T. Browes-Bugden Member A. Merritt Member rFOR THE N. Roland GRIEVOR Counsel Cornish, Roland · Barristers & Solicitors FOR THE D. McKeown EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING May 22, 1992 DECISION Mike Page, the Grievor, is employed by the Ministry of the Solicitor General as a caretaker. He is classified as a Buildings Caretaker 1. He grieves tl~at he is improperly classified. In setting out the settlement desired, Mr. Page requests "that I be re-classified so that my wage rate in relation to those of Caretakers 2 and 3 is set at an appropriate level. This payment should be retroactive to January 1, 1990.". The facts leading to this grieval~ce are not in dispute. The Grievor was hired in November 1981 as a Caretaker and was classified as a Buildings Caretaker 1. He worked alone as the caretaker at the Guelph detachment of the Ontario Provincial Police headquarters. In October 1987, Herbert Barefoot was hired on a part-time basis for a short period to as~ist the Grievor. Mr. Barefoot was classified as a Cleaner 2. In January 1988, Mr. Barefoot went from being a part-time employee to a full-time employee but kept his classification of Cleaner 2. There was a wage difference between Building Caretaker 1 and Cleaner 2, with the Cleaner 2 attracting a lower wage. This changed in January 1990 when the pay equity plan which was negotiated between the Employer and the Union came into effect. The pay equity plan increased the wages of certain classifications of employees, among them Cleaner 1 and Cleaner 2, 2 with the result that persons holding classification of Cleaner 2 came to have a higher wage than persons holding the classification of Building Caretake~r 1. More specifically, Mr. Barefoot, who held and holds the position of "assistant caretaker" and has a classification of Cleaner 2, came to have a higher wage than the Grievor who holds the position title of "caretaker" and has a classification of Buildings Caretaker 1. Mr. Page grieves, in essence, because his "assistant" is being paid more than he, and because he is, in relative terms, falling further behind. It is agreed on the part of the Union that the position specification for the Grievor's position, caretaker, accurately sets out the duties and skills related to the Grievor's job. It is also agreed on the part of the Union that the class standard covering Buildings Caretaker 1 accurately describes the role and functions performed by the Grievor. We are asked, however, to find that the Grievor is improperly classified, and to make a Berry . order to reclassify him in order to restore an historical wage relationship as between the Grievor and Mr. Barefoot, the assistant caretaker. The Employer has raised a preliminary argument that this Board has no jurisdiction to entertain this grievance. It is argued on behalf of the Employer that the gist of the dispute is an allegation that the relative pay as between the Grievor and the 3 assistant caretaker is inequitable, 'and that the use of the classification grievance is merely an artifice to seek an order which would in essence undo or re-write the pay equity plan that the parties have negotiated. The pay equity plan, once negotiated and agreed to, is deemed to be approved by the pay equity co~mission, and pursuant to s. 13(9) and (10) of the Pay Equity Act, 1987, as Amended, becomes part of the Collective Agreement. S. 13(9) and (10) provide as follows: "13 (9) A pay equity plan that. is approved under this Part binds the employer and the employees to whom the plan applie:~ and their bargaining agent, if any'. (10) A pay equity plan that. is approved under this Part prevails over all relevant collective agreements and the adjustments to rates of compensation required by the plan shall be deemed to be incorporated into and form part of the relevant collective agreements." It is the contention of the Employer that we have no jurisdiction to entertain this grievance because if we were to make the order requested, it would in effect undermine the agreed pay equity plan and would be contrary to the general principle that arbitration boards, in interpreting and applying collective agreements, must apply the general law of the land. The Employer makes an alternative argument that the Union 4 should be estopped from proceeding with this classification grievance as the issue has already been visited in the course of negotiating the pay equity plan, 'and the Union must now accept the result of its bargain, notwithstanding there may be individuals, like the Grievor, who will not be happy with the result. In our view, this Board does have jurisdiction to entertain this grievance. The Crown Employees Collective Bargaining Act expressly confers a right to grieve classification. This Board's jurisdiction to hear a classification grievance is not circumscribed by the nature of the remedy which the Grievor seeks. It is the jurisdiction of the Board to decide grievances and to determine an appropriate remedy. While the Employer's argument is .based 6n an interpretation of the grievance statement inferring that what the Grievor's seeks is an amendment to the Collective Agreement which this Board does not have jurisdiction to grant, there is nevertheless a prime facie arbitrable grievance of improper classification. As to the merits of the grievance, it is contended on the part of the Union that, notwithstanding that the class standard and the position specification fit, the Grievor is improperly classified. The ground upon which the Union relies is that the Grievor is paid a lower wage than his assistant, a circumstance which, it is argued, constitutes a classification problem. The 5 Union relies on the case of Anstett. et al and The Ministry of Correctional Service~ (5/85, 8/85, 15/85, 7/88, 318/88, 360/88, 1433/88) a decision of vice-Chairman Knopf dated January 4, 1991. Our attention was drawn to the following at p. 22 of the Decision: "...While it is true that wage scales are not determinative in classification cases, the purpose of a classification scheme is to ensure the proper internal integrity and hierarchy of jobs.. It makes no sense in any kind of a classification scheme to have someone being supervised by another who is in a lower wage scale. Wage scales are supposed to reflect the reporting hierarchy. As said by Professor Swinton in Edwards and Malonev, supra, at page 11: " .... the classifications have been designed for a purpose .... the aim being to preserve the morale and status concerns of those more highly qualified in a particular field of endeavour." In the facts of the case at hand, we have skilled Journeymen Foremen supervising the work of non-skilled Industrial officers who are classified higher than their supervisor. The fact that a "supervisor" is paid lower than his supposive "subordinate" indicates that there is a classification problem. This was accepted in the Heslinga case. Hence, we are persuaded by the Union's argument that the Maintenance Foremen Class Standard cannot properly be applied to the Repair Shop Foremen." We note, however, that in the Anstett case, the evidence disclosed that the class standard did'not fit. That fact is the classic component of misclassification. I take the comments in relation to wage scales in the Anstett decision to be an observation of another fact which sezwed to reinforce the correctness of the finding that the class standard was inappropriate in that case, and as such I would consider the comment of Vice-Chairman Knopf to be obiter. It is urged upon us that the fact that the person holding the position of assistant caretaker and classified as Cleaner 2 is earning a higher wage than the Grievor who holds the position of caretaker is sufficient in and of itself to lead to a finding that he is improperly classified notwithstanding that the class standard fits. With respect, we cannot accede to this proposition. While it may be desirable in the interests of hierarchical consistency to have wage structures which are consistent with title or position hierarchies, we are not prepared to accept the universal proposition that where such consistency does not occur, there is a misclassification. A classification problem, in the sense that certain persons may view the system as unfair, cannot be equated with a misclassification. These parties when striking their pay equity bargain made a determination between themselves that a Cleaner 2 should be paid more than a Buildings Caretaker 1. The parties had their reasons for coming to this conclusion and while the bargain may have led to a classification "problem" in the colloquial sense, we have no jurisdiction to re-write the bargain. It is a matter for the parties when next at the bargaining table to amend the agreement if they are of a view that this particular aspect of the pay equity plan was misconceived. It strikes us that the source of the problem lies in the preamble to the Buildings Cleaner and Helper, and Buildings Caretaker class series. In the preamble for the Buildings 7 Caretaker series we find the following: "In some situations, this series may be used to cover positions ~f caretakers who work on a shift basis, i.e. where more than one caretaker i~ employed in order to assure that the building is maintained during the evening and/or night. However,. in these cases the personnel concerned must perform all the duties normally required of the caretaker, e.g. checking the furnace, minor maintenance and repairs, building security and requisitioning supplies. Where more than one employee is employed on the same shift, or where the shifts overlap on more than one employee's position cannot be allocated to this series." Mr. Barefoot's and Mr. Page's shifts do overlap, and it would appear that it is because of the above provision in the preamble that Mr. Barefoot, notwithstanding his position title of assistant caretaker, was assigned to the Cleaner series. The logic of relegating a person who is a caretaker to the Cleaner series simply by reason of the fact that he works an overlapping shift with another caretaker, does not leap out at one. Here it appears to have created the anomaly in wages with which the Grievor is understandably unhappy. The gist of the grievance appears, however, to be not that the Grievor is not being properly paid but that another employee is being paid too much in relation to what he is paid. The foregoing does not, however, lead us to the inference that the Grievor is improperly classified. On the agreed facts, Mr. Page is properly classified, and while ti~ere is some appeal to the argument that as a matter of policy, persons designated as assistants should not be paid more than persons holding the position title simpliciter, we do not have jurisdiction to rewrite the bargain that the parties have made in order to give effect to such a policy. That Mr. Page has a "grievance" in the colloquial sense is unquestionable. Regrettably, his remedy, if any, is not to be found in this classification grievance. We would strongly recommend that the parties negotiate a method to eliminate this anomaly. The grievance will accordingly be dismissed. DATED this 2?ch day of August- , 1992. ' W. a i rpe r son----~ ~embers comments to follow. # T. BROWES-BUGDEN- Member A. MERRITT- Member