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HomeMy WebLinkAbout1995-0147.Wilson_Anastasakas et al.01-03-28 Decision o NTARI 0 EMPLOYES DE LA COL'RONNE CROWN EMPLOYEES DE L 'ONTARIO . . GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB#0147/95 0148/95 0812/99 OPSEU# 95C468 95C469 99C822 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Uruon (Wilson/Anastaskos et al) Gnevor - and - The Crown m Right of Ontano (Mirusm of Transportatlon) Employer BEFORE Nimal V DISSanayake Vice Chair FOR THE Robm Gordon GRIEVOR Gnevance Officer Ontano PublIc ServIce Employees Uruon FOR THE Kelh Burke, Counsel EMPLOYER Legal ServIces Branch Management Board Secretanat HEARING March 13 2001 DECISION This decision relates to the following files 0147/95 Kelly 0148/95 Levere 0812/99 Wilson/Anastasakos It deals with a preliminary objection by the employer that all of the grlevances are inarbitrable because they are classification grlevances over which the Board no longer has jurisdiction The objection lS based on the Local Appendix to the Social Framework Agreement dated August 1, 1993 between the parties, which was executed to assist in implementing the Social Contract Act, 1993 S 0 Ch 5 (Hereinafter "the Local Appendix" ) The pertinent provisions of the Local Appendix are as follows 8 The parties agree that all classification grlevances under the Crown Employees Collective Bargaining Act or under a collective agreement between the parties filed by or on behalf of employees In the bargaining unit of public servants represented by the Union for which a decision of the Grievance Settlement Board has not been rendered by August 1, 1993 are withdrawn effective August 1, 1993 and the parties shall take no steps to further any such grievance or any hearing of such a grievance and shall take no steps to enforce any decision of the Board pertaining to any such grievance after August 1, 1993 9 The parties agree they shall take no steps to further any classification grlevances under the Crown Employees Collective Bargaining Act or under a collective agreement between the parties filed after August 1, 1993, except for any classification 2 grlevances In respect of a new classification system In which such grievances are expressly allowed 10 For the purposes of this agreement, and, In particular paragraphs 5 and 6 above, "classification grievances" incl udes, but is not limited to, (a) all grlevances claiming lmproper classification of persons classified within the Office and Administration Group of the classification system of the Employer (b) all grlevances claiming lmproper classification of persons within the classification system of the Employer in which part of the settlement desired is the making of a new classification or classification standard, and (c) all grlevances claiming lmproper classification of persons within the classifications system of the employer In which part of the settlement desired lS the reclassification of the grlevor or grlevors to an existing classification standard that properly applies to him, her or them A side letter to the Local Appendix, entered into between the parties reads The Employer agrees to allocate the lump sum of $ 20,000,000 00, In addition to any other amount allocated for the Bargaining Unit Overhaul, for the purpose of compensating employees whose classification grlevances have been withdrawn or rendered void by the local agreement The Employer will pay this money to the employees mentioned above in accordance with an agreement between the Union and the Employer for the distribution of the monies to these employees 3 It lS also to be noted that In 1993 the provlslons of the Crown Employees Collective Bargaining Act glvlng the Board jurisdiction to decide classification grlevances were repealed and the following provision substituted 52(1) A provlslon In an agreement entered into that provides for the determination by an arbitrator, a board of arbitration or another tribunal of any of the following matters is void 1 A classification system of employees, including creating a new classification system or amending an existing classification system 2 The classification of an employee including changing an employee's classification The lssues in the Kelly grievance and the Wilson/ Anastasakos grlevance are identical, while the Levere grlevance involves different considerations Each grlevance will be dealt with separately The Wilson/Anastasakos grievances The following agreed statement of facts was filed 1 Alex Wilson and Tom Anastasakos were employed with the Ministry of Transportation in the position of "Utilities Technician", classified as Technician 2, Municipal Engineering (T2ME) for the period April 1, 1990 to January 31, 1994 They were employed In the central reglon 2 Mr Wilson and Mr Anastasakos filed the present grlevances dated February 26, 1993 claiming they were 4 improperly classified Attached at TAB 1 lS a copy of the grievances 3 Between 1986 and 1989, twenty three (23) employees in the position of Corridor Management Officer (CMO) classified as Inspector Signs and Buildings Permits 2 (ISBP2 ) grieved their classification On January 5, 1990, an award of the Grievance Settlement Board (GSB)found that were "improperly classified" and directed the Employer to create a new classification to properly reflect the grievors' duties and responsibilities (See Re OPSEU (Berry) and the Crown in Right of Ontario)" Attached at TAB 2 is a copy of the GSB award dated January 5, 1990 4 As part of the Social Contract Act, 1993 and the Local Appendix, OPSEU and Management Board of Cabinet agreed to settle all unresolved classification grlevances filed between January 1, 1986 and August 1, 1993 All such grlevances were withdrawn or rendered void by the terms of the Local appendix and a $ 20,000,000 00 settlement amount established to compensate those employees whose classification grlevances were withdrawn or rendered void This was communicated to employees by way of a letter dated December 21, 1994 which lS attached at TAB 3 Attached at TAB 4 lS a copy of the Local Appendix between the Government of Ontario and OPSEU dated August 1, 1993 5 Mr Wilson and Mr Anastasakos were compensated out of the $ 20,000,000 00 and by the terms of the agreement the payment rendered their grlevances null and void Attached at TAB 5 IS The Memorandum of Agreement dated November 17, 1994 which identifies the $ 20,000,000 00 settlement and the list of employees who were eligible for a portion of the payment 6 The grlevors referred to In paragraph (3) above are identified in the appendix attached to the said Grievance Settlement Board award Neither Mr Wilson nor Mr Anastasakos were among the (23) grievors and they did not occupy a CMO position 7 a Pursuant to Maintenance Renewal project, the Ministry of Transportation reclassified the grlevors identified In paragraph (3) above from Inspectors Signs and Buildings Permits 2 (ISBP2 ) to the 5 Technician 2 Municipal Engineering (Atypical) for pay purposes only effective April 1, 1990 b On January 28, 1993, the Labour Relations Tribunal found that the Technician 2 Municipal Engineering (Atypical) classification was insufficient for the position of CMO Therefore, it ordered that the ISBP2 classification for the CMO position be rated and paid In accordance with the Engineering Services Officer 3 (ES03) classification rates Attached at TAB 6 is a copy of the decision c On July 27, 1993, OPSEU and Management Board Secretariat signed a Memorandum of Settlement regarding the wage rates and implementation of the ISBP2 classification for the CMO position Attached a t TAB 7 is a copy of the Memorandum of Settlement 8 On February 1, 1994, the Ministry of Transportation reclassified the position of Utility Technicians to the ISBP2 classification The positions held by Mr Wilson and Mr Anastasakos were affected by this reclassification 9 Mr Wilson and Mr Anastasakos are no longer employees of the Ontario Public Service (Attachments omitted) At the hearing the parties stipulated a correction to Para 5 by agreeing that Mr Wilson did not receive any compensation from the $ 20 million settlement amount, and further that it was unclear whether Mr Anastasakos received any compensation The preliminary lssue was argued on the basis of the agreed facts and the documents referred to therein 6 Union counsel set out for the Board the nature of the grlevance that will be pursued on behalf of grlevors Wilson and Anastasakos The union pointed out that the evidence will show that although the two grlevors were not CMO's and hence were not covered by the GSB decision finding that the CMO's were improperly classified, the employer had recognized on two occaSlons that the work performed by the grievors was of equal value and responsibility Thus, the employer moved CMO's to the T2ME classification allocated to the Utilities Technician position held by the grlevors Second, after the Board had ruled In 1994 that CMO's should be paid at the ISBP2 level, the employer reclassified the Utility Technician position also to the ISBP2 level In announclng the reclassification, the employer stated "The decision lS based on the recognition of the need to establish parity between the Utilities Technician positions and the Corridor Management Officer positions due to the interchangeable and parallel nature of the work performed" The union stated that it will lead evidence to show that as early as 1993 the employer understood that the new class standards and wage rates for CMO's would also be applied to the grievors The unlon concedes that parity was achieved for the grlevors In 1994 when the employer unilaterally brought them up to the same level as CMO's However, the crux of its grlevance lS that the 7 employer did not grant any retroactivity to its decision The result, according to the unlon, was that between 1990 and 1994 the grievors were doing the same work as CMO's, but were paid less The unlon will call evidence to show that during that period any difference between the grievor's work and that of the CMO's was purely semantic The unlon submits that this case lS not about classification but about retroactive compensation The grievors have been already properly classified by unilateral employer action Thus they are no longer seeking re-classification They are merely seeking proper compensation for the period prlor to that employer action The union urged the Board to deal with the merits of these grlevances and to remedy the injustice suffered by the grlevors, who have received arbitrary and unequal treatment by being paid less than other employees performing essentially the same work In the alternative, the union submitted that, if the merits of the grlevances are heard, it would lead evidence to show that the grievors also were subject to unfair and unequal treatment in another way When the lncreases were awarded In 1994, some employees received a "step to step" lncrease For example, if they were at step 5 of the old wage grid, they were placed at step 5 of the new grid However, the grlevors were treated differently They were merely accorded a 3 percent promotional lncrease, as a result of 8 which, they moved from step 5 of the old grid to step 3 of the new grid The union submits that it was an unfair and arbitrary exercise of management rights and was seeking to correct this injustice through these grievances The employer's position lS that the Wilson/Anastasakos grlevances are captured by the settlement in the Local Appendix, and are void Therefore, the Board lacked jurisdiction to deal with the same Counsel countered the union's argument that labour relations interests will be served by redressing the injustice alleged, by submitting that the Board has an obligation to foster good labour relations by upholding and glvlng effect to the ajreement entered into between the parties in the Local Appendix The unlon relied on Re Barker, 2476/92 (Kaplan) and Re Courte/MacGreqor, 1946/93,0206/94 (Roberts) In the former case the employer took the position, inter alia, that the grlevances were classification grlevances and that Slnce the grievor's were unclassified employees, they were not entitled to file classification grlevances The unlon contended that the grlevors were merely seeking their rights under article 3 3 1, that it was a claim for compensation under that article and not a claim for reclassification In dismissing the employer's position, the Board at p 11 wrote 9 These grlevors are not challenging their classification What they are doing lS seeking the reVlew of their compensation, which lS determined by management selecting an "equivalent" classification This lS the only sense In which the grlevances pertain to classification, and in no way can they be described as classification grlevances of the kind that frequently come before this Board The grlevors are entitled, under Article 3 3 1 of the Collective Agreement, to be paid the wage rate assigned to an equivalent classification, and that entitlement carries with it a corresponding entitlement to grleve the comparator classification assigned to them for the determination of wages where the allegation lS made that it lS not equivalent The matter of equivalence lS an lssue for the Board to decide Obviously, the grlevors have every right to file grlevances pertaining to the overtime provision of the Collective Agreement In Re Courte/MacGreqor, the grlevors had claimed that the employer had discriminated against them on the basis of disability contrary to article A 1 1 of the collective agreement by paying them at lower wage rates than other employees performing similar work for the employer The unlon contended that the duties and responsibilities of the grlevors were valued at a lower level than those of other employees because of an assumption that the grlevors could not do as much as other employees because they were disabled On the merits, the employer took the position that the grievor's disability had nothing to do with their pay rates In any event, the employer submitted that the GSB lacked jurisdiction to hear the merits of the grlevances because they were, In substance, classification grievances, which were barred by the Local Appendix 10 In rejecting the employer's objection to arbitrability, the Board observed at pp 7-8, Under paragraph 10 (c) of the Local Appendix, "classification grievances" include "grievances claiming lmproper classification in whi ch part of the settlement desired lS reclassification " To fall within this definition, then a grievance must (1) claim improper classification, and, (2) seek as part of the settlement, reclassification In the present case, the grlevances do not claim reclassification They claim discrimination Nor do we think, as suggested by counsel for the Ministry, that In substance, the grlevances claim lmproper classification It seems to us that a claim of discrimination might involve the consideration of evidence and issues far beyond those to be found in the usual classification grlevance For example, evidence might be called bearing upon the lssue of discriminatory intent, e g , memoranda, letters or statements made by those who originally classified the position indicating a generalized Vlew that all handicapped persons were not capable of performing at the same level as other dispatchers Evidence of lack of discriminatory intent has already been hinted at by counsel for the Ministry, e g , the indication of counsel that the jobs of the grlevors were classified before it was known they would become part of the affirmative action programme and the potential request that the Board take a Vlew of the facilities to determine the degree to which they differ from other dispatching facilities In the Ontario Provincial Police The employer cited In support of its position, Re Aitken 0678/87 (Gorsky) and Re Rosamond, 2086/96 (Leighton) In the former case, the grievor claimed that she "was improperly placed in the pay 11 scale of OAG8 schedule" and sought to be placed " at the top level of OAG8 pay schedule as of December 31, 1985," and that she be glven "full retroactivity, salary and benefits for that period of time" The employer took the position, inter alia, as the present employer did, that the grievance was barred by the terms of the Local Appendix At p 8 the Board noted the positions of the respective parties It was the position of the unlon that the grlevance before us does not concern classification but, rather, proper placement on the OAG 8 grid when the Grievor was transferred from the Clerk 3 General classification to that of OAG 8 on January 1, 1986 The Employer's position was that the allegation that the Grievor had been improperly placed on the OAG 8 grid was based on an alleged misclassification in 1982 and, hence, the Union's position, In reality, relates to a claim that the Grievor had been improperly classified in 1982 The Board made the finding of fact that the grlevor had been classified as a Clerk 2 upon her appointment to the underfill position in 1982 At pp 10-11 the Board set out the union's case on the merits of the grievance It lS also evident from the Union's Statement of Facts and Issues that its case would be dependent on its establishing the facts outlined by it as supporting its Vlew of the resolution of the lssues before the 12 Board In paragraph 4 of its Statement there lS an allegation that the duties and responsibilities of the Grievor were identical to those of Claims Processing Clerks classified at the Clerk 3 level, and paragraph 5 discloses the union's position that the Grievor's skills and knowledge were identical to that of the Claims Processing Clerks classified as being at the Clerk 3 level Most significantly, under "Reasons for the Grievor's Request for Reclassification," paragraph 6 of the Statement provides that the Grievor was misclassified as Clerk 2 (underfill) during the first year of her employment as a Claims Processing Clerk and that this alleged misclassification had the effect of, inter alia, placing her In a lower level of the OAG 8 wage grid upon the transition to OAG on January 1, 1986 until she achieved the top level of that grid It lS evident from the statement of the Union that it must first be established whether its allegations with respect to the duties and responsibilities performed by the Grievor and her skills and knowledge were "identical to those of Claims Processing Clerks who were classified at the Clerk 3 level," and not those of a persons classified as Clerk 2 Noting that paragraph 10 of the Local Appendix does not furnish an all-encompassing definition of "classification grievances' , the Board stated at p 22 We would regard classification grievances as including grlevances that can only be decided if the Board must first render a decision with respect to the proper classification of a grievor at some point in time Since the Board had to decide whether the grievor's duties and responsibilities properly fell within the Clerk 2 or Clerk 3 13 classification in order to determine her claim for placement on the wage grid, the Board held at p 22 It lS difficult to see how a grlevance that requlres the determination of a grievor's correct classification at some point is not a classification grievance because the ultimate issue for determination involves placement on a salary grid If the Union's submission were accepted, then it would be possible to disguise many classification grievances, which are largely driven by a legitimate desire to be paid at a grievor's proper classification level, by formulating the grlevance as ralslng an ultimate lssue that does not refer to her having been misclassified, even if the ultimate lssue cannot be decided without first determining such an lssue In Re Rosamond, the grlevance alleged that "the employer has downgraded my classification from OAG 9 to OAG 8" and claimed the following remedy The employer reinstate my classification to OAG 9 retroactively to March 31, 1996 To be compensated in full from point of downgrade to reinstatement with interest at current bank rates That the period of time during the downgrade be reviewed and adjustments with respect to my surplus be made where appropriate Like the employer here, the employer In that case also objected to the Board's jurisdiction on the basis that it was a classification grlevance barred by the Local Appendix The unlon took the position that the grlevance was In "pith and substance' a bumping rights case 14 In that case the position the grlevor held had been down- graded in March 1996 as part of a review of classifications following a merger between two ministries, and was subsequently surplus sed At p 4, the Board described the "core" of the grievance on its merits The "core" of the grlevance before me lS that Ms Rosamond wanted to return to her preVlOUS position at Northern Development Corporation, however, having had her classification downgraded, she could not, given the rules of bumping Her prevlous position at Northern Development was classified at OAG 9 The provisions in the collective agreement under Article 20 4 1 do not permit an individual to bump up a classification Thus, Mr Richards asked me to conclude that Ms Rosamond's complaint lS not a classification grlevance in the traditional sense Following a review of the Aitken decision (supra) , the Board held at p 7 The case before me lS similar in that it would require an examination of the job that the grlevor was doing before her classification was downgraded from an OAG 9 to OAG 8, In order to decide the second lssue of whether or not Ms Rosamund had been denied her rights under Article 20 I am of the view that the language in Appendix 7, Section 3 lS clear and unambiguous In stating that the JSSC has the jurisdiction to reVlew and decide on "all complaints or differences involving allegations of lmproper classification " There lS nothing in this language to suggest that it only covers classification grlevances where the grlevor lS alleging, In the traditional way, that his or her classification should be higher In the present case the grlevors are not alleging that their classification at the time of grlevlng was lmproper Nor are they 15 seeking an order for reclassification Thus, these are not traditional classification grlevances However, as the Board has held, para 10 of the Local Appendix only contains an "inclusive" definition of a classification grlevance In Re Aitken the Board concluded that any grlevance where "the Board must first render a decision with respect to the proper classification at some point In time" is captured by the Local Appendix At p 19 the Board observed that It lS not unusual, In classification cases, for the lssue to involve a question of classification at an earlier moment In time, where, at the time of the hearing, a grlevor lS already classified at the requested or a higher level In my view, the cases cited by the union are distinguishable In Re Barber the Board was not considering the proper interpretation of the Local Appendix There the grlevors were unclassified employees and were attempting to enforce a particular right extended explicitly to unclassified employees by article 3 3 1 of the collective agreement The Board simply held that when the grlevors pursued that right, they were not pursuing classification grievances In Re Courte/MacGregor, the essence of the grlevance was a right not to be discriminated against on the basis of grounds prohibited by the collective agreement and the Ontario Human Rights Code The Board there based its decision on the fact that the protection of human 16 rights has an overriding importance and that the Social Contract Act, itself explicitly preserved that protection Thus at p 7 the Board wrote This lS a broad prohibition of discrimination which incorporates by reference the prohibited categories of the Ontario Human Rights Code, including discrimination by reason of handicap This reflects a determination by the parties to provide a remedy by way of grievance arbitration to supplant the often cumbersome and time consumlng process perceived to be accorded complaints to the Ontario Human Rights Commission Next, we consider the impact of section 6 of the Social Contract Act While this provision does not expressly prohibit application of the Social Contract Act to reduce a collective agreement right, it does prohibit any application of its terms that would reduce any right under the Human Riqhts Code This lS a strong provlslon, essentially glvlng overriding importance to the preservation and promotion of human rights In light of these indicia of the importance glven by both the government and the parties to human rights, it seems to us that it would take clear and specific language in any agreement reached by the parties to cut down the rights of employees to advance to arbitration grlevances claiming discrimination under Article A of the Collective Agreement Upon reviewing paragraphs 8, 9 and 10 of the Local Appendix, we do not find such language The Board distinguished Re Aitken on the basis that there, the Board's decision "would turn virtually entirely upon determining whether the grlevors were improperly classified before their reclassification took place" , whereas In the grlevances before it " the decision may well turn upon issues related to discrimination 17 and not merely a comparlson of duties and responsibilities In different classifications" In my Vlew, the case before me lS even more similar to Re - Aitken than Re Rosamond was Here also, the unlon lS seeking to prove that during a period prior to their ultimate reclassification, the classification allocated to the grievors' positions did not reflect the duties and responsibilities they had Union counsel repeatedly pleaded that the evidence will show that the grievors' duties and responsibilities during that period were very similar to the duties and responsibilities of CMO's who were classified at a higher paying level, and that any differences were merely semantic The unlon couched its claim as a claim for retroactivity and for compensation, that it was seeking to correct the injustice of employees performing the same work for lesser pay than what was paid to other employees Even though the unlon refrained from alleging that the grlevors were improperly classified during the period In question, the conclusion is inescapable that the essence of the claim is that since they performed the same work as CMO's during the period in question, they should have been paid at the same classification as the CMO's To determine the merits of the grlevance, it would be essential for the Board to compare the duties and responsibilities of different classifications In other words, the union's entire case 18 depends on a determination as to whether or not the classification allocated by the employer to the grievors' position during the period in question was proper This clearly lS an lssue which lS captured by the Local Appendix Therefore, the Board lacks jurisdiction to deal with the grlevances In reaching this conclusion I have not been unmindful of the union's claim that an injustice has been done to the grlevors It lS trite to say that where any employee is improperly classified, and as a result lS under-paid an injustice occurs However, that does not detract from the fact that the parties have entered into an agreement, through the Local Appendix, to deal with such claims of injustice ill a certain way The Board has an obligation to respect and enforce that agreement For all of the above reasons, I find that I lack jurisdiction to deal with the grlevances on the grounds adduced by the unlon as described in the foregoing pages I next turn to the alternate grounds relied upon by the union In support of the grlevances, to the effect that, the employer had exercised its management rights in an arbitrary and unfair manner by denying the grlevors step to step wage lncreases, while other 19 employees were granted such lncreases Employer counsel made no submission that the grievances on this ground are barred by the Local Appendix or for any other reason Therefore, the Board will be prepared to hear these grievances on that basis The Kelly grievance The following Agreed Statement of Facts was filed 1 Kevin Kelly was employed with the Ministry of Transportation In the position of "Utilities Co- ordinator", classified as Technician 2, Municipal Engineering (T2ME) for the period May 28, 1991 to January 31, 1994 He was employed in the eastern region 2 Mr Kelly filed a grievance dated April 18, 1994 claiming "discrimination based on the salary level placed at and the effective date of February 1, 1994 for my new reclassification to Inspector Signs & Buildings Permits" Attached at TAB 10 is a copy of the grievance 3 Pursuant to article 9 of the Local Appendix of the Social Contract framework dated August 1, 1993, "the parties agree they shall take no steps to further any classification grlevances under the Crown Employees Collective Bargaining Act or under a collective agreement between the parties filed after August 1, 1993, except for any classification grlevances In respect of a new classification system In which such grlevances are expressly allowed" Attached at TAB 4 is a copy of the Local Appendix 4 This moratorium was codified at article 10 5 of Appendix 7 of the Collective Agreement between Management Board of Cabinet and the Ontario Public Service Employees Union dated January 1, 1994 to December 31, 1998, which states that "there will be a moratorium on classification grlevances until June 1, 1998" A copy of the said provision of the collective agreement is attached at TAB 8 20 5 Between 1986 and 1989, twenty three (23) employees in the position of Corridor Management Officer (CMO) classified as Inspector Signs and Buildings Permits 2 (ISBP2 ) grieved their classification On January 5, 1990, an award of the Grievance Settlement Board (GSB) found that they were "improperly classified" and directed the Employer to create a new classification to properly reflect the grievors' duties and responsibilities (See Re OPSEU (Berry) and the Crown ~n Right of Ontario) H Attached at TAB 2 is a copy of the award dated January 5, 1990 6 The grlevors referred to In paragraph (5 ) above are identified in the appendix attached to the said Grievance Settlement Board award dated January 5, 1990 Mr Kelly was not among the (23) grlevors and he did not occupy a CMO position 7 a Pursuant to a Maintenance Renewal Project, the Ministry of Transportation reclassified the grlevors identified In paragraph (5) above from Inspectors Signs and Buildings Permits 2 (ISBP2 ) to the Technician 2 Municipal Engineering (Atypical) for pay purposes only effective April 1, 1990 b On January 28, 1993, the Labour Relations Tribunal found that the Technician 2 Municipal Engineering (Atypical) classification was insufficient for the position of CMO Therefore, it ordered that the ISBP2 classification for the CMO position be rated and paid In accordance with the Engineering Services Officer 3 (ES03) classification rates The award is attached at TAB 6 c On July 27, 1993, OPSEU and Management Board Secretariat signed a Memorandum of Settlement regarding the wage rates and implementation of the ISBP2 classification for the CMO position The Memorandum of Settlement lS attached at TAB 7 21 22 8 On February 1, 1994 the Ministry of Transportation reclassified the position of Utility Coordinator to the ISBP2 classification The position held by Mr Kelly was affected by this reclassification (Attachments omitted) The parties agreed that the lssues arising out of these facts and their respective submissions with regard to Mr Kelly's grievance are identical to those in the Wilson/Anastasakos grievances In the circumstances the employer's objection to arbitrability In this grlevance lS also disposed on the same basis as the Wilson/Anastasakos grievance That is, the Board finds that it lacks jurisdiction to deal with the claim for retroactive compensation on the basis of an alleged similarity of work, but that the Local Appendix does not bar the determination of the allegation that the employer had exercised management rights In an arbitrary and unfair manner The Levere Grievance The following "Agreed Statement of Facts' was filed 1 Effective November 23, 1987, Doug Levere became an Inspector Signs and Buildings Permits 2(ISBP2) On February 20, 1989, he filed a classification grlevance regarding the ISBP2 classification 2 On July 17, 1989, Mr Levere received a promotion to the position of Utility Co-ordinator, classified as Technician 1, Engineering Office, through a job competition On April 2, 1990, the position of Utility 22 Technician was reclassified to Technician 2, Municipal Engineering 3 Between 1986 and 1989, twenty three (23) employees in the position of Corridor Management Officer (CMO) classified as Inspector Signs and Buildings Permits 2 (ISBP2 ) grieved their classification On January 5, 1990, an award of the Grievance Settlement Board (GSB) found that they were "improperly classified" and directed the Employer to create a new classification to properly reflect the grievors' duties and responsibilities (See Re OPSEU (Berry) and the Crown ~n Right of Ontario) H Attached at TAB 2 is a copy of the award dated January 5, 1990 4 The grlevors referred to In paragraph (3) above are identified in the appendix attached to the said Grievance Settlement Board award dated January 5, 1990 Mr Levere was among the (23) grlevors for the time he was In the (ISBP2 ) classified position 5 Pursuant to article 9 of the Local Appendix of the Social Contract framework dated August 1, 1993, "the parties agree they shall take no steps to further any classification grlevances under the Crown employees Collective Bargaining Act or under a collective agreement between the parties filed after August 1, 1993, except for any classification grlevances In respect of new classification system In which such grlevances are expressly allowed" Attached at TAB 4 is a copy of the Local Appendix 6 This moratorium was codified at article 10 5 of appendix 7 of the Collective Agreement between Management Board of Cabinet and the Ontario Public Service Employees Union dated January 1, 1994 to December 31, 1998, which states that "there will be a moratorium on classification grlevances until June 1, 1998" Attached at TAB 8 lS a copy of the provision of the collective agreement 7 Mr Levere filed the present grlevance dated April 18, 1994 alleging "discrimination based on the decision by the Ministry of Transportation not to maintain parity in my position of Utility Technician and that of the 23 Inspector Signs & Buildings permits 2 position from July 17, 1989 to the present date' The grievance is attached at TAB 9 8 a Pursuant to a Maintenance Renewal Project, the Ministry of Transportation reclassified the grlevors identified In paragraph (3) above from Inspectors Signs and Buildings Permits 2 (ISBP2 ) to the Technician 2 Municipal Engineering (Atypical) for pay purposes only effective April 1, 1990 b On January 28, 1993, the Labour Relations Tribunal found that the Technician 2 Municipal Engineering (Atypical) classification was insufficient for the position of CMO Therefore, It ordered that the ISBP2 classification for the CMO position be rated and paid In accordance with the Engineering Services Officer 3 (ES03) classification rates The decision is attached at TAB 6 c On July 7, 1993, OPSEU and Management Board Secretariat signed Memorandum of Settlement regarding the wage rates and implementation of the ISBP2 classification for the CMO position The Memorandum of Settlement is attached at TAB 7 d Mr Levere received a retroactive pay lncrease for the period of January 23, 1989 (20) days prlor to the grievanceO to July 17, 1989 when he became a Utility Technician As a result of the GSB Award and Memorandum of Settlement, the ISBP2 classification became a higher paid classification than the T2ME 3 On February 1, 1994, the Ministry of Transportation reclassified the position of Utility Technician to the ISBP2 classification The position held by Mr Levere was affected by this reclassification He moved from the 24 maximum pay level (5th step) of the T2ME grid to the 1'1 step of the ISBP2 pay grid The placement on the grid was In accordance with article 7 of the Collective Agreement dated January 1, 1994 to December 31, 1998 (Attachments omitted) Again the parties agreed that the lssues arising out of these facts and that their respective arguments relating to this grlevance were identical to those In the Wilson/ Anastasakos and the Kelly grlevances To that extent, the employer's objection to arbitrability lS disposed of In the same manner as In those grlevances That lS, the Board finds that it lacks jurisdiction to deal wi th the claim for retroactive compensation on the basis of an alleged similarity of work, but that the Local Appendix does not bar the determination of the allegation that the employer had exercised management rights in an arbitrary and unfair manner However, the unlon raised an additional lssue In the Levere grlevance The union stated that the evidence will be that when Mr Levere participated In the job competition for the Utility Co- ordinator position, for him that represented a promotion with a higher pay rate However, after he assumed his new position, following grlevances filed by certain other employees, his former position was found by the GSB to have been improperly classified Further to a Board order his former position was reclassified The 25 result was that his former position became higher paying than his new position In other words, what he believed was a promotion turned out to be a demotion The grievor would testify that had his former position been properly classified by the employer In the first instance, he would not have applied for a position, which represented a demotion with lesser pay In this grlevance, he claims that he should be retroactively paid at the rate applicable to his former position following the Board order and the reclassification, for the entire period he occupied that position The union would argue that Mr Levere should not be penalized because he was misled by the employer into believing that what he was applying for was a promotion Counsel submitted that here Mr Levere was not seeking reclassification The reclassification was already done pursuant to a Board decision The lssue here lS as to what retroactive entitlements flow as a result of the Board decision and the reclassification The employer took the position that the Board lacked jurisdiction to determine this issue because in substance the grievor was claiming that his position vas improperly classified during the period in question That was the basis of his claim for retroactive pay Counsel submitted that the Local Appendix barred such a grievance because it was a classification grievance 26 The alleged facts relating to this aspect of the grlevance were presented orally by union counsel during her submissions As a result the facts asserted are not very clear However, as I understand, the union is claiming that the GSB has already found that the duties and responsibilities the grievor performed in his former position during the period he held that position had been improperly classified and had ordered that position to be reclassified The unlon submitted that this aspect of Mr Levere's grlevance cannot properly be described as a classification grlevance within the meaning of the Local Appendix as interpreted by the Board In these circumstances the unlon would not have to conVlnce me that the grievor's position was improperly classified at any point of time The Board has already made that decision The employer had complied with the Board order by reclassifying the position Therefore, it has already been determined what the proper classification for the position was The grlevor was merely claiming that upon his reclassification, he was entitled to full retroactivity The dispute was not about the proper classification, but about the extent of retroactivity The lssue then lS whether this claim by Mr Levere for retroactivity lS captured within the meanlng of "classification 27 grievance" as that term is used in the Local Appendix Clearly, it does not fall within the definitions In paragraphs 10 (a) , 10(b) or 10 (c) of the Local Appendix Nor does it fall within the broader definition adapted in Re Aitken(supra), because Mr Levere's claim is not a grlevance "that can only be decided if the Board must first render a decision with respect to the proper classification of a grlevor at some point in time " Clearly, the determination of Mr Levere's claim for retroactivity does not require me to determine the proper classification for his position, because that has already been decided and implemented I would not be called upon to go through an exerClse of comparlng the duties and responsibilities of different classifications, as would typically be the case In classification cases In essence, the dispute lS about the compensation Mr Levere was entitled to for the period he occupied the position I have concluded that the Local Appendix does not deprive the Board of jurisdiction to hear that claim on its merits Summary In conclusion, the Board hereby dismisses the grlevances as they relate to those aspects over which it has concluded it has no jurisdiction The Board remalns seized to deal wi th the grlevances 28 on those aspects over which it has concluded it has jurisdiction as set out in this decision Dated at Hamilton, this 28th day of March, 2001 ~~ ..:'II-..... 'lor - ':~ I ~ ~~ 'n _~ .. ~ - Nimal V Dissanayake, Vice-Chair 29