HomeMy WebLinkAbout1987-0678.Aitken et al.93-12-21 Decision
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EMPLOYES DELA COURONNE (
DE L 'ONTA RIO
CpMMISSION DE
REGLEMENT
DES GRIEFS.
ONTARIO (
CROWN fM, ~JYfES
GRIEVANCE
SETTLEMENT
BOARD
180 DUNDAS STREET WEST, sum: 2100, TORONTO, ONTARIO. M5G lZ8
180, RUE DUNDAS OUE:ST, BUREAU 2100, TORONTO (ONTARIO), M5G lZ8
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BETWEEN
BEFORE:
FOR THE
GRIEVOR
FOR THE
EMPLOYER
HEARING
IN THE MATTER OF AN ARBITRATION
Under
TELEPHONE/TELEPHONE: (416) 326-1388
FACSIM/LE/TEUi:cOPIE.- (416) 326-1396
678/87
THB CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Aitken et all
- and -
The Crown in Right of ontario
(Ministry of Health)
M.' Gorsky
P. Klym
M. O'Toole
N. Roland
Counsel
Barrister & Solicitor
R. Bayne
Counsel
Filion, Wakely & Thorup
Barristers & solicitors
April 21, 1993
October 5, 7, 1993
Grievor
Employer
Vice-Chairperson
Member
Member
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I N T E R I Ii
DEe I S ION
Although there were nlne grievances before us, all of which
were dealt with in the parties~ statements, by agreement of counsel
the only one that we are to deal with at this time is that of
Sandra Noad, which was filed as Exhibit 1. It was also agreed that
Ms. Noad was not to be treated as a representative 9rievor~ and~
unless the parties so agree, the decision in her case will not
apply to the other grievors.
Ms. Noad's grievance is dated December 19, 1986, and, In it,
she alleges that she "was improperly placed in the pay scale of
OAG 8 schedule," and she requests that she be placed "... at the
top level of OAG 8' pay schedule as of December 3l, 1985," and that
she be given "full retroactivity, salar~ and benefits for that
period of time.tI
The Union filed a "statement of Facts and Issuestl which 1S
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consistent with the requirement. to be followed in the. case of
classification cases that had been issued by the Chairperson of the
Board, wwhich statement is as follows:
t. BACKGROUND
1. The grievors in this matter are Claims Processing
Clerks in the Ministry of Health. In or about 1981-1982
the grievors applied for the posted position of Claims
Processing Clerks in what was then the Ontario Health
Insurance Program. The Claims Processing position was,
at that time, classified as a Clerk III, General. All
the grievors were successful in their application for the
position. Unfortunately, after the grievors were told
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they had been successful in'their competition, they were
then informed that they woufd be classified, for the
.first year in the position, as Clerk lIs and not Clerk
Ills. This status was referred to by the Ministry as
"underfill".
2. As a consequence of the underfill status, the
grievors were paid at the Clerk II level and were held
back by one year in the commencement of their progression
up the Clerk III wage scale. As a further consequence,
when O.A.G.replaced Clerk, General in January I, 1986,
the grievors were placed on a lower level of the O.A.G. 8
wage progression than they would have been had their wage
progress not be held back by their being, Clerk lIs in
their first year' of service as Claims Processing ~lerks.
3. The parties have entered into a settlement that
covers disputes arising out of the period from the
placement in the position until December 31, 1985 and
from October 1, 1988 onward. The wage treatment
resulting from the original misclassificationthat
existed from January 1, 1986 to September 30; 1988 is
still in issue in that it was not settled in the original
settlement.
II. DUTIES AND RESPONSIBILITIES PERFORMED BY 'THE GRIEVOR
4. The duties and responsibilities of the grievors were
and are identical to those of Claims Processing Clerks
who were classified at the Clerk III level.
III SKILLS AND KNOWLEDGE
5. The skills ~nd knowledge of the grievors were and
are identical to those of Claims Processing Clerks who
were classified at the Clerk III level.
IV. REA SON S FOR THE G R ! E V 0 R 's REO U EST FOR
RECLASSIFICATION
6. The grievors were misclassified as Clerk II
(underfills) in the first year of their employment as
Claims ~rocessing Clerks. This misclassification had the
effect of, inter alia, placing the grievors in a lower
level of the O.A.G. 8 wage grid upon the transition to
O.A.G. on January 1, 1986 until the grievors achieved the
top level of that grid.
v. RELIEF REQUESTED
7. Payment, with interest, of the amount of money
representing the difference between, what the grievors
received in wages during the relevant time and what they
should have received had they not been improperly
classified.
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The Employer's Statement of Facts and Issues filed 1n response
to that of the Union's is as follows:
union Counsel's statement of the background facts of this
case is generally COrrect and accepted by the Employer.
However, with respect to the accepted practice of
assigning persons in an underfill assignment it must be
clear that all the employees in question were advised
prior to assignment to the Claims Clerk position that
they were not fully qualified to perform all of the
duties of eh position and would be appointed as Clerk 2,
General CUnderfill) for ,a period of up to one year if
they decided to accept the assignment.
It was generally the practice,. in the Health Insurance
Division, to remove the underfill status after one year
in the position as it was considered the employees would
have gained sufficient experience in the ~ork to acquire
the skills and knowledge necessary to be able to, perform
all the required functions of the position. At the end
of that period, the grievors were all reclassified to
Clerk 3, General in accordance with the provisions of
Article 5 of the Collective Agreement, specifically
Section 5.2.
It is NOT accepted that the Duties and Responsibilities
and Skills and Knowledge of the grievors were identical
to the Clerk 3, general Claims Processing Clerks at the
time the grievors were assigned on the underfill basis.
The purpose of the underfill assignment, as stated above,
was to allow the grievors to gain the position at the
full working level. When it was determined they had
achieved that level a~d were, in fact performing the full
duties and responsibilities of the position they were
reclassified to Clerk 3, General.
It is generally accepted by the, parties that the
Memorandum of Settlement entered into on or about 13
March, 1989 resolved the issue of the grievor's underfill
status during the various periods from 1981 to 1983, and
all claims for additional wages up to December 31, 1985.
This is supported in the Union Counsel's Letter of Claim
at page 2.
"The parties have entered' into a settlement that
covers disputes arising out of the period from the
placement in the position 'until December 31, 1985
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This is further supported by the letter from Mr. Howard
Law of OPSEU's Grievance Office dated 2 October, 1991.
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"In view of the above, the following should be
clear:
(i) any claim for Clerk 3 General wages prior to
December 31, 1985 is settled;"
If this is so, then it must also be accepted that the
grievors were being correctly paid as of December 31,
1985, at which time they were all classified and
correctly paid in the Clerk 3, General salary range.
The Office Administration Group Implementation Agreement
signed l6 April, 1986 established the Office
Administration Category effective December 31, 1985 (Part
I, 1) and specified the salary Treatment of Employees on
Implementation (Part, II, 4).
"4.2 Where a position is reclassified to a class
with a higher maximum salary, the employee who
occupies the position at the time of the
reclassification shall' be paid the rate that
is closest to, but not less than, his/her
current rate EXCEPT where the employee was at
the maximum rate of the former salary range
for:
6 months or more, in the case of a salary
range with semi-annual increments; or
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12 months or more, in the case of a
salary range with annual increments;
in which case, the employee shall ,be paid the
next higher rate."
It is the Employer's position that the OAG classification
system and pay plan was 'implemented strictly in
accordance with the Agreement with respect to these
grievors. All were classified as Clerk 3, General prior
to conversion to OAG, were reclassified to OAG 8 and the
above-quoted procedure was applied. Further salary
progression of the grievors from that date onward was
correct and proper.
Further, it is the Employer IS position that once the
"underfill" issue was settled in March, 1989 it can not
be properly considered by the Board in this instant case,
The only issue before this Board is whether or not the
Employer correctly reclassified, these grie~ors from
Clerk 3, General to GAG 8 on December 31, 1985. It is
the Employer's position that that action was correct.
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When the hearing opened on April 21, 1993, counsel for the
Employer raised two preliminary objections to arbitrability, the
first one being based on the memorandum of settlement entered into
between the parties dated March 13, 1989, which was also executed
by the Grievor, referred. to in the above quoted statements of the
parties. The said memorandum of settlement was with respect to ,a
grievance filed by the Grievor, (as well as certain grievances filed
by other persons). The earlier grievance of the Grievor is dated
April 8, 1986, where the Grievor claimed that she had been
"improperly classified as a' clerk 3 underfill from June 1, 1982"
and requested that she be frgiven salary and benefits' for that
period of ,time as a clerk 3 plus ... appropriated interest."
The second objection was based on the delay 1n filing the
grievance before us, it being the Employer's position that it had
suffered prejudice by the delay in that its ability to prepare and
present its case has been adversely affected by the unavailability
of certain witnesses, the unavailability of certain material that
would have otherwise been retained, and by the effect .of the
passage of time on the memories of its witnesses.
At the conclusion of the hearing that.took place on April 26,
1993, the parties agreed that when the 'hearing resumed on October
5, 1993 they would present evidence and argument with respect to
the preliminary objections.
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During the course of the continuation of the hearing on
October 5, 1993, a third objection ,to arbitrability w~s raised by
counsel for the Employer based on the terms of the Local Appendix'
to the Sectoral Framework Agreement between the parties of August
1,1993.
The particular, provisions of the Local Appendix to the
Sectoral Agreement relied upon by the Employer are as follows:
8. The' parties agree that all classification
grievances under the Crown Emflloyees Collective
Bargaining Act or under a collective agreement
between the parties fil~d by or on behalf of
employees in the bargaining unit of public servants
repres~nted 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 I, 1993.
9. The parties agree they shall take no steps to
further any classification grievances under the
Crown Emplov~es Collectiv~ Bargaining Act or under
a collective agreement between the parties filed
after August 1, 1993, except for any classification
grievances 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 8 and 9 above,
"classification grievances" includes, but is not
limited to,
(a) all grievances claiming improper
classification of persons classified within
the, Office and Administration Group of the
classification system of the Employer,
(b) all grievances claiming improper
c I ass if i c'a t ion 0 f per son s wit hi nth e
classification system of the Employer in which
part of the settlement desired is the making
of a new classification or classification
standard, and
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(c) all grievances claiming improper
classification of persons within the
classification system of the employer in which
part of the settlement desired is the
reclassification of the grievor or grievors to
an existing classification standard that
properly applies to him, her or them.
11. For purposes of clarity only, and without affecting
paragraph 8, the withdrawal of grievances in
paragraph 8 does not affect those grievances for
which the Grievance Settlement Board has rendered a
decision before August 1, 1993 or to the 'sa lary .
ranges that may be set by agreement of the parties
or by. arbitration under Article 5.8 of the
collective agreement resulting lrom a decision of
the Grievance Settlement Board before August 1,
1993.
12. Where a decision of, the Board or agreement or,
arbitration ,under Article 5.8 of the collective
agreement referred to in paragraph a does not
affect all of the employees at a level in a class
standard, the result of that decision, agreement or
arbitration shall be extended to an employee not
otherwise affected by.that decision, agreement or
arbitration where that employee has duties and
responsibilities that are identical to' employees
who were the subject of the decision, agreement or
arbitration.
A side letter to the Local Appendix is as follows:
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 grievances
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.
Because of the nature of the last mentioned objection, it was
suggested to the parties that they agree to first present evidence
and argument with respect to it, and that the Board would only hear
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evidence and argument with respect to the other objections should
the noted objection fail.
The parties accepted the Board's
suggestion. The parties also agreed that the Board should decide
the noted objection rather than having it,referred elsewhere for
determination.
From the position of the Employer, it IS evident that it
regards the instant grievance as f~lling within paragraph 9(c) of
the local appendix because it, in substance, challenges the
classification of the Grievor at the time she was appointed to an
underfill position in 1982.
It was the position of the Union that the grievance 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 B on January 1, 1986.
The Employer 1 s position was that the allegation that the
Grievor had been improperly placed on the OAG 8 grid was based on
an alleged misclassification 1n 1982 and, hence, the Union's
position, in reality, relates to a claim that the Grievor had been
improperly classified in 1982. The issue raised by the Union was
said to be the same issue as arose In the earlier grievance
(Exhibit 6) which was couched In terms that made it clear that the
Grievor was claiming that she had been improperly classified from
June 1, 1982, when she was appointed to the underfill position. Th~
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monetary settlement desired in the grievance was said not to affect
its being, in essence, a classification grievance.
In the case before us it is important to look at the
statements of the parties, above referred to, ,which are binding on
them except in limited circumstances where they are shown to have
been made in error. See, Blomme, 547/91 '(Gorsky) (First, Second
and Third Interim Decisions), where the binding effect of the
statements and the circumstances that must exist in order to permit
a party to resile from them is discussed. It was not disputed that
the Grievor applied for the position of Claims Processing Clerk in
or about 1981-1ge2, as is alleged in the Statement of Facts and
Issues, and that an incumbent of that position was expected to hold
the classification of Clerk 3, General.
Although the Union's statement of Facts and Issues :indicates
that the Grievor was successful in her application for ,the
position, we are satisfied that the position was filled on an
underfill basis, and, as is further stated in ~he Statement of
Facts and Issues, the Grievor was classified as a Clerk 2 and not
a Clerk 3
while assigned to the underfill position.
Although
there was some difference between the parties as to the
classification of the Grievorat the relevant times, the Union
taking the position that the Grievor was referred to as- a Clerk 3
(underfill), with the Employer taking the position that she was a
Clerk 2 (und~rfill), we are satisfied that the statement contained
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1n the Union's statement of Facts (and acknowledged in the
Employer's statement) is correct. Whether she should have been
properly classified a Clerk 3 upon her appoint~ent to the under~ill
fosition is another matter, and one that this Board would be called
upon to determine. We cannot accept the submission of counsel for
the Union that we ought to disregard the allegations of fact taken
in the Union's stemement, and to now find that, contrary to the
Union's earlier position (that taken in its statement) that the
Grievor was classified as a Clerk 3 and not as a Clerk 2 when in.
the Underfill position. As above noted, there was no evidence
adduced that would permit the Union to resi Ie from its earl ier
position.
, The reference to the status of the Grievor as a Clerk 2 is
found in paragraphs 1 and 2 of the Union's statement of Facts and
Issues.
It. is also evident from th~ union's statement of Facts and
Issues that its case would be dependent on its establishing the
facts outlined by it as supporting its view of the resolution of
the issues before the Board. In paragraph 4 of its statement there
is 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
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identical to that of the Claims Processing Clerks classified as
being at the Clerk 3 level.
Most significantly, under "Reasons for the Grievor1s Request
for Reclassification," paragra~h 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 l€!vel 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 is 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.
At the hearing, counsel for the Union asked us to Vlew the
Grievor as having already been classified as a Clerk 3 General when
she was appointed to the underfill position. If that was the case,
it was submitted that the Board was not being asked to deal with
what her proper classification when she was appointed to the
underfill position was but was merely required to ascertain her
place on the.OAG wage grid for salary purposes on January 1, 1986.
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We were referred to Alani/Christopher, 1336191 (Finley), where
the Board discussed underfill assignments and the application of
such assignments as set down ~n the Ontario Manual of
Administration.
Exhibit 7 was filed in the matter before us, being an extract
from the Manual of Administration (pp.5-46-1 and ,5-46-2), which is
as follows:
ASSIGNMENTS IN THE CLASSIFIED SERVICE (continued)
UNDERFILL ASSIGNMENT
Definition:
nUnderfill
Assignment
An underfill assignment occurs where a
person, lacking the full qualifications
for a'position, is assigned, but:
is not required to perform the full
range and/or level of duties of the
position; and
is paid at a classification level
lower than that established for the
position.
Level of
Assignment:
An underfill assignment ought, normally,
to be approved at one level, and in no
case more than two levels, below the
classification of the position to which
. the persori is assigned, EXCEPT in special
cases:
where prior approval of the
Recruitment Branch, Civil Service
Commission has been received; and
where the ministry can demonstrate
the existence of a formal training
program.
Assignment
criteria:
An underfill assignment may only be made
if one of the following criteria applies:
a fully qualified candidate is not
available for the position; or
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Approval of
Assignment:
Conditions of
Assignment:
Periodic
Review:
Removal of
Underfill:
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a deputy minister is exerc1s1ng the
authority to waive a competition
under planned career progression .for
a management position.
Where staffing authority:
is NOT delegated to a ministry,
prior approval of the Recruitment
Branch, Civil Service Commission, is
required for all unde.t"fill
assignments;
is delegated to a ministry, prior
approval of the deputy minister or
designee is required.
Prior to assignment, the ministry shall
advise the person in writing of the:
.reason for the underfill assignment;
probable length 'of the underfill
assignment; and
course of action if the employee
fails to fulfil the conditions of
underfill assignment.
Within two weeks from the date of the
assignment, the ministry shall advise the
person in writing of the:
outline of a development program
designed to enable the employee to
perform at the working level of the
position; and
dates for review of progress.
The underfill assignment shall be
reviewed with the employee during the
course of the underfill. In the event
that the employee is not progressing at a
rate acceptable to the ministry, and
where the ministry has met the conditions
of assignment, a course of action shall
be determined at the time of the review.
Where the ministry. determines that the
employee has met the requirements of the
position either before the termination of
the agreed length of the underfill, or
upon its expiry:
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the status of underfill shall be
removed; and
documentation of this action
recorded.
Salary
Treatment:
For salary treatment on assignment to a
position on an underfill basis, see "PAY
ADMINISTRATION" at Section 9 o~ this
volume.
In order that the Board might better understand the nature of
the dispute between the parties, Exhibits 3, 4 and 5 w~re filed,
,which are as follows:
Exhibit 3:
17 July 1991
Mr. Robert Anderson
Personnel officer
MacDonald Cartier Building
49 Place d'Armes
Kingston, ontario
K7L SH9
He: OPSEU v. MOB (London CHIP Office - In Province
Clerks)
Dear Mr. Anderson:
I have explained to the London In-Province Clerks the
proper placement on the, grid upon conversion to the OA
,series, pursuant to th~ OA Collective Agreement.
Accordingly, these grievances will not proceed.
However, there is a group of In-Province Clerks who were
improperly placed upon the OA 8 wage grid because at the
time of conversion their grievances against the Clerk 2
Underfill classification were still outstanding. Because
of the Clerk 2 classification, they were not placed on
the OA 8 grid in the same manner as In-Province Clerks in
the Clerk 3 classification.
As you are aware, the Aitken et al grievance against the
Clerk 2 Underfill was settled in their favour by the
Mi~istry. Accordingly, it is clear that these employees
should have been converted in December 1986 from Clerk ~
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Exhibit 4
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to OA 8. Their placement on the grid, with retroactive
compensation, should be adjusted.
I look forward to your reply.
Very truly yours,
Howard Law
Grievance Officer
Employer
8 August, 1991
Mr. Howard Law
Grievance Officer
Ontario Public Service Employees Union
1901 Yonge Street
Toronto, Ontario
M4S 2z5
Dear, Mr. Law:
Re: OPSEU vMOH (London In-Province Claims Clerks)
Your letter of 17 July, 1991 refers. It is noted that
the grievance concerning the In-Province Cla1msClerks in
the London MOa Office will not proceed.
With regard to the Aitken et al matter: it should be
noted that all of the' grievors were reclassified as Clerk
3 General prior' to conversion to the OAG series. Our
records show that the grievors were initially appointed
as Claims Clerks, Clerk 2 General at various times from
1980 to 1982, with the majority of them being appointed
in mid-1982. The appointment to Clerk 3 Genera 1 on
removal of the Underfill ~ondition generally occurred one
year after the initial appointment. Therefore, their
initial conversion to OAG 8 was based on their salary as
Clerk 3 General, as were all of the other In-Province
Claim Clerks.
It should be noted that at the time of the settlement of
this matter all grievors who were not then being paid at
the maximum of the GAG salary range were given increases
to the next step in the range, in accordance with the
terms of the Memorandum of Settlement.
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Clear ly, these e.mployees were converted correct ly 1n
December 1986 from Clerk 3 General to OAG 8, and no
further adjustment is warranted.
Yours truly,
R. J. Anderson
Personnel Officer
2 October 1991
OPSEU #: 70490
Mr. Robert Anderson
Human Resources Branch
Ministry of Health
49 Place d'armes
4th Floor
Kingston, Ontario
K7L 5J3
Re: OPSEU v. .GHIP (Aitken et al - Underfills)
Dear Mr. Anderson:
Thank you for your letter of August 8th regarding the
outstanding issue of the proper placement upon the OAG 8
wage grid of the above-noted group of eleven grievors.
The memorandum of settlement dated March 13th, 1989
resolved two issues in return for the withdrawals of the
May and December 1986 underfill grievances, namely:
(i) $400.00 cash, and
(ii) progression to the next step of the OAG 8 wage grid
effective October 1, 1988.
As local management will confirm, the original employer
proposal for settlement included the withdrawal of the
grievances filed in December 1986 with respect to
placement on the OAG 8 wage grld. This was expressly
declined by the Local and the grievors and the final
me~orandum of settlement expressly reflects this in,
paragraph 1.
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In v~ew of ' the above, the following should be clear:
(i) any claim for Clerk 3, General wages prior to
December 31, 1985 is settled;
(ii) any claim for wages owed as a result of improper
placement on the OAG 8 wage grid after October 1, 1988 is
settled;
(iii) the grievors' claim for wages owed as a result of
improper placement on the OAG 8 wage grid from December
31, 1985 until September 30, 1988 remains in dispute
under the December 1986 grievances which were expressly
not withdrawn. '
Accordingly, it is the Union's position that the improper
underfilling of the grievors as Clerk 2 General led
directly to an improper placement on the Clerk 3 General
grid on December 31, 1985, the date of conversion to the
OAG classification system.
I will provide details shortly as to the actual impact on
particular grievors. However I hope that we 'can resolve
the principle of the matter in the interim.
Failing this, I will be scheduling this gr1evance before
the Board for November 12th, 1991.
I look forward to hearing from you.
Very truly yours,
Howa~d Law
Grievance Officer
The Memorandum of Settlement affecting the Grievor, executed,
March 13, 1989 (Exhibit 2), is as follows:
MEMORANDUM OF SETTLEMENT
1. The parties hereto agree to without precedent and
without prejudice the following terms and conditions
settlement of the grievances listed in Schedule "A"
attached underfill grievance only.
2. Each grievor listed ~n Schedule "A" shall be g1ven
a cash payment of four hundred dollars ($400.00) in
settlement of their grievances as listed in Schedule A.
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3. Each grievor listed in Schedule "A" who is currently
being paid at a rate in the pay schedule which is less
than the maximum rate in the range shall have their pay
rate increased to the next level in the range. .
4. The salary revision as detailed in paragraph (3)
shall be effective from October 1st, 1988 on which this
agreement is signed by the parties.
5. The grievors shall not disclose the terms of this
agreement to any person without authorization of Mr. C.
Mee with the exception of the Grievance Settlement Board.
6. It is understood that a. violation of the above
provision #5 will require the grievor to repay all monies
paid out pursuant to the agreement with the exception of
the Grievance Settlement Board.
If this grievance proceeds on the merits, the Board will have
to decide the Grievor's claim for wages owed. In order to do this,
the Board will first have to ascertain her proper placement on the
OAG 8 wage grid from December 31, 1985 until September 30, 1988,
which is the matter remaining in dispute under the Grievor' s
December 19, 1986 grievance (Exhibit 1), being the grievance before
us for determination. As noted, counsel for the Union argued that
this is nota classification grievance because the Board is only
req~ired to determine the correct placement of the Grievor on the
GAG 8 salary grid - the Union's position being that there is no
dispute between the parties as to the classification of the Grievor
during the relevant period - January 1, 1986 to September 3D, 1988
- and Mr. Anderson's letter to Mr. Law (Exhibit 4) acknowledges
that this is the case:, "With regard to the Aitken et al. matter: it
should be noted that all of the Grievors were reclassified as Clerk
3 General pr10r to conversion to the GAG series."
19
A number of issues of fact and law may arise under a single
grievance. On its face, the issue identified by counsel for the
Union does not appear to involve a classification grievance, 1n the
sense that there is no dispute between the parties as to the
correct classification of the Grievor at the time of the conversion
to the OAG class series.
However, there is an apparent
classification issue directly raised by the Union which is set out
1n paragraph 3 of its statement of Facts and Issues:
The wage treatment resulting from the original
misclassification that existed from January 1, 1986 to
September 30, 1988 is still an issue and that it was not
settled in the original 'settlement.
The Union, in' its statement of Facts and Issues, recognizes
that in order for its position in the grievance to be established,
it must demonstrate that the original placement of the Grievor 10
the underfill position amounted, in its own words, to a,
"mi~classification."
The above quoted portions of the Union1s
Statement of Facts and Issues indicate that while the issue relates
to: >>The wage treatment ... that existed from January I, 1986 to
September 30, 1988 ...," this wage treatment resulted "from the
original misclassification." In order for the Union's argument to
prevail, it acknowledged that it 'had to establish an "original
misclassification.tt It is not unususual, in classification cases,
for the issue to involve a,question of classification at an earlier
moment in time, where, at the time of the hearing, a grievor is
already classified at the requested or a higher level.
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It is significant that the Union, in its Statement of Facts
and Issues, which it did not endeavour to resile from, states its
position 1n conventional terms relevant to a classification
grlevance.
In section II of its Statement of Facts and Issues,
"DUTIES AN RESPONSIBILITIES PERFORMED BY THE GRIEVOR," it states
that the duties and responsibilities of the Grievor were identical
to those of Claims Processing Clerks who were classified at the
Clerk 3 level.
In Section III "SKILLS AND KNOWLEDGE," it states that the
skills and knowledge of the Grievor were identical to those of the
Claims Processing Clerks classified at the Clerk 3 level.
In Section IV "REASONS FOR THE GRIEVOR'S REQUEST FOR
RECLASSIFICATION," the Union states that the Grievor was
misclassified as a Clerk 2 underfill during the first year of her
employment as a Claims Processing Clerk, which alleged
misclassification had the effect, inter alia, of 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 on that grid.
Accordingly, although the relief requested in Section V of the
Union's Statement of Facts and Issues relates to payment with
,interest of the amount of money representing the difference between
what the Grievors received in wages during the relevant time and
what she should have received had she not been improperly
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classified, the determination of the payment ~ssue ~s dependent on
the prior determination of a classification issue.
At the hearing, counsel for the Union argued, without adducing
evidence 1n support .of his position, that the Grievor had been
appointed to the underfill position as a Clerk 3 General and not as
a Clerk 2 General. It was submitted that, that being the case, the
dispute between the parties at no time involved a classification
issue, that matter having been settled by the underfill appointment
as a Clerk 3 General. There being" according to Union counsel, no
dispute as to the proper classification of the Grievor at any time,
either as a Clerk 3 General or as an OAG 8, we were asked to regard
the matter before us as not representing a classification grievance
as envisaged by the Local Appendix and to deny the noted objection
toarbitrability.
If counsel for the Union is correct, the Union would still
have to satisfy the' Board that the Grievor's duties and
responsibilities and skills and knowledge were identical to those
of the Claims Processing Clerks classified as Clerk 3 General, as
alleged in paragraphs 4 and 5 of the Union's statement of Facts and
Issues.
The Union's argument that this is not a classification
gr~evance is dependent on our first, finding that there :L8 no
dispute between the parties as to the correct classification of the
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Grievor as a Clerk 3 General from the time of her appointment to
the underfill position. If there. is such a dispute, then this
Board must decide which of the competing contentions as to the
classification of the Grievor upon her appointment to the underfill
position should prevail. ,It is difficult to see ho~ a grievance
that requires the determination of a. grievor's correct
classification at some point is not a classification grlevance
because the ultimate, issue for determination involves placement on
a salary grid. If the Union's submission were accepted, then it
would be pqssible 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
raising an ultimate issue that does not refer to her having been
misclassified, even if the ultimate lssue cannot be decided without
first determining such an issue.
We note that paragraph 10 of the Local Appendix does not
furnish an all-encompassing definition of "classification
grievances." We would regard classification' grievances as
including grievances 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.
As noted, counsel for the Union relied upon the decision of
the Board in the A~ani/Christo~her case. In that' case, the issue
before the Board also arose as a resul t of a memorandum of
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settlement having been executed by the parties.
The particular
part of the memorandum of settlement (Item 5D) provided that;
All grievors classified as TA ,III on the date of this
settlement shall be reclassified to the classification of
Financial Officer 4, (atypical) as of the date of this
settlement.
The grJ.evors (at p. 9) contended that as at the date of the
memorandum of settlement, "They were TA III IS, and they should have'
become FO 4's," pursuant to the said settlement.
In that case, as J.n the case before ,us, the union was not
challenging the use of the Underfill Policy and, accordingly, for
the purposes of this case it is being regarded as valid.
In the ~lani/Christopher case, the employer took the position,
as did the Employer in the case before. us, that the grievors, when
they were appointed to the underfill positions were classified at
one classification level 'below the normal classification for
incumbents of the relevant positions.
In ~lani/Christopher, the
employer also took the position, as did the Employer in the case
before us, that promotion to the higher classification did not take
place until the completion of the underfill assignment.
I n the
Alani/Christopher case, as in the case before us, the Board ,had to
determine the status, of a grievor at a moment in time.
At p.19 of the Alani/Christopher case, the Board states:
References to their status in the documents, when taken
as a whole, present an inconsistent picture particularly
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with respect to language and terminology. [Emphasis
added. ] [s ic ]
The Board goes on to state; at pp.19-20:
The letter dated August 21, 1990 (Ex. 7) states that
This will confirm your successful candidacy for the
position of Senior Tax Auditor (Desk) with
Corporations Tax' Branch, ef:f;ective Monday
August 20. 1990.
rhe position is c lassif ~ed at the level of Tax
Audi tor 3 ... Since you do not meet the full
requirements of the position at the present time,
you will be classified at ,the underfill level of
Tax Auditor 2... '
.. .Removal of the underfill will be conditional
upon satisfactory performance...
The training plan (Exhibit 8) set out by Management and
agreed to by the parties refers, to the following:
POSITION: Ta~ Auditor 3 Underfill
PERIOD OF TRAINING:' ...
The employee will revert to his
previous po~ition of Tax
Auditor 2, if the expectations
as set out hereunder are not
fulfilled.
overall evaluations of performance will be
completed.. . for the purpose of promotion to Tax
Auditor 3.
A memorandum from Mr. Waugh to Mr. Frankland concerning
SUBJECT: N. Alani I s 6 Month Underfill and Field
Visit Program Review
TAX KNOWLEDGE
...his appointment as a TA 3 underfill.
(Emphasis in original)
The Board, in Alani/Christopher; did not say that the grievors
in that cas~ could not have been appointed to the underfill
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position at their preVlOUS classification: TA II.
It is
significant that the Board (at p. 22) found that: "There was no
mention of their continuing in a TA II classified position or
undertaking the duties of such a position. Nor were they offered
a position with a TA II classification.
Further at'pp.22-3, the Board states:
The underfill program places a condition on the
parti6ipant. The question 'is, whether this 1S a
condition precedent or a condition subsequent. That is,
must the condition be fulfilled before the individual is
promoted to the position or, does the fulfilling of the
condition confirm that person in the position to which he
or she has already been promoted. Nothing in the policy
or elsewhere mandates that it should be one or the other.
Each situation is determinative of whether or not it is
a condition subsequent or precedent.
In the circumstances of the Alani/Christopher case, the Board
concluded that: n... the Grievors were assigned to positions with
a TA 3 classification as of August 20,. 1990 and were in those
positions on the date of the settlement" March 11, 1991 and
therefore come within the parameters of Item 5 (D)."
It 15 e~ident from' the Alani/Christopher case that the Board
did not find that the underfill assignment policy required that a
person appointed to an underfill position'had to have it approved
at the same classification as the position to which the employee
had been appointed.
The facts of each case will determine the
level of classification of the employee assigned to an underfill
position.
The arguments made in the Alani/Christopher case on
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behalf of the grievers could not assist the Grievor in the case
before us. The Union, in its Statement of Facts and Issues in the
case before Us, acknowledged that the Grievor was classified as a
Clerk 2 when assigned to the underfill position. No attempt was
made to resile from this position through evidence being adduced to
show that the statements contained 1n the Union's Statement had
been included ,through inadvertence or could"be altered for some
other permissible reason. Cf. Blomme, above.
Al though, standing. a lone, it would net be determinative,
Exhibit 8, which is a memorandum dated June 14, 1982, from the
Grievor to Mr. J.M. Davis, Director of the London District Office,
is consistent with statements'contained in the Union's Statement
and with the position of the Employer. That Exhibit states:
, "
This memo is in reference to my appl ication for the
Claims Trainee (underfill) position, Clerk 2, General.
In accepting this appointment / I agree to accept the
lower salary in effect for the Clerk 2" General
Classification, ;which 1S in effect at the time of my new
appointment.
"Mrs. S. Noad"
It is also significant that in Alani/Christopher the grievors
had been Tax Auditors (Desk), classified at the TA 2 level, and had
applied for the position of Senior Auditor (Desk), which was
classified at the TA 3 level, and had (at p. 2) al ready served
several months as Tax Auditors ( Desk) .
On the basis of the
evidence before us, the Grievors had notbee~ Claims Proceising
Clerks but had been Data Entry Operators.
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Furthermore. the position of the Union. as set out in
Exhibits 3 and 5. is consistent with the contents of its Statement
of Facts and Issues: that the Grievor had been improperly appointed
as a Clerk 2 General.
In any event. the facts before us would ra~se a clear issue as
to the classification of the Grievor at the date she was appointed
to the underfill position in 1982. and that is an issue that the
Board could not avoid dealing with if the matter were to be heard
on its merits.
However the matter J.S examined. there is an inescapable
conclusion that this panel of the Board would have to determine, as
a central issue. the classification status of the Grievor as at the
date of her appointm~nt to the underfill position, and. to, that
extent. we would, be dealing with a classification grievance as
envisaged under, the Local Appendix to the Sectoral Framework
Agreement of August 1, 1993.
The determination of the Board on the merits. will, for the
reasons above stated. require us to decide whether the Grievor was
properly a Clerk 2. to which classification we find she had been
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assigned ~hen appointed to the underfill position, or whether she
should have, been classified as a.Clerk 3 at that time. Unlike the
case of 'Alani/Christopher, where the evidence clearly pointed to
the conclusion that the grievors had been appointed to the FA 3
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classification, . as they contended, the evidence here does not
support a conclusion that the Grievor had been appointed at the
Clerk 3 level to the underfill assignment.
Reference was also made to the case of Victor Walton, 612/81,
613/81 (Verity). In that case, the Board notes, at p.14:
This board is of the view that management's policy on
underfill appointments presents certain inherent
difficul ties as being contrary to the -classification
scheme recognized by the Parties in their collective
Agreement. To us it appears unreasonable that an
Employee for pay purposes is categorized in one
classification, and for evaluation purposes is considered
in a separate and distinct classification.
We have already noted that, by agreement of the parties, we
are to treat the Employer's policy on underfill appointments as
being valid, and are required to reconcile any "inherent
difficulties" while treating 'the policy as .valid. However, it is
of significance that in the Walton case, the Board noted that the
grievor was appointed to a position "underfilling a Laundry Worker
2 positibn" (at p.3) and was "classified at the level of Laundry
Worker 1" for a maximum period of twelve months pending his
"acquiring the necessary experience and skills."
(Ibid.) In the
~al ton case, the Board found that the employer had improperly
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appraised the grievor at the laundry worker 2 classification level
"when in fact he was classified as L~undry Worker 1."
(At p.13.)
The Board can appreciate the frustration of Ms. Noad because
of our having to allow the preliminary objection and declare her
grievance to be inarbitrable.
Our sympathy fOr her posi tioD,
however, does not permit us to overlook the validity of the
objection which we must uphold.
Accordingly, and for the above
reasons, we must declare the grievance to be inarbitrable.
Dated at Toronto this 21st 'day of -'-December, 1993.
771-e! 4~ 4.-
'M. Gorsky - Vice Chairperson
"I DissentU (dissent attached)
P. Klyrn - Member
l!2c 'I ()I /~
. O'Toole - Member
... ~.
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GSB File 678/87 OPSEU (Aitkenet al) and Ministry of Health
DISSENT OF UNION NOMINEE
I have carefully studied the detailed decision of the Chair
and, with respect, I cannot agree.
The issue ,we are required to decide at this stage is solely
whether we should uphold the employer's preliminary objection that
,this is a classification grievance and thus not subject to
arbitration as per the Local Appendix to the Sectoral Agreement.
The issue raised in the grievance before us is the proper pay
level of the grievor within the O.A.G. 8 pay schedule., This in
itself is certainly not a classification issue.
I do agree that, in order to eventually resolve the grievance,
the Panel will have to determine the classification status of the
grievor at the date of her appointment to the underfill position.
If the position to which she was appointed actually bore the
classification of Clerk 2 within the class standards system and she
claims it should have had a Clerk 3 classification, then I would
agree that this is a classification grievance.
However, if' the position which she occupied was actually
classified 'as Clerk 3 within the class standards system, then the
iss~e is whether the underfill was properly applied and whether the
lesser pay assigned to her within the Clerk 2 pay scale was improper.
I cannot agree that solely determining the actual class of a
position, within the class standards system, to which an employee
, ' ,
is assigned, without any claim that this position is in the wrong
class standard, is a "classification" grievance.
For example, a dispute may arise under Article 25 during
surplus declaration, bumping or lay-off as to the correct actual
classification status of an employee at a relevant time. Surely,
determining this status can't be considered as falling within the
intent of the parties under paragraphs 8, 9 and 10 of the Local
Appendix to the Sectoral Agreement.
This is precisely the issue before us - determining the status
of the grievor at the time she was appointed to the position.
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Before we can uphold the employer' s . claim that this is a
classification grievance, we' must determine under which class
standard the grievor's position fell at the time the underfill
condition was imposed.
As stated in the Alani/Christopher decision, with underfill
assignments a determination may have to be made whether' the
underfill condition must be fulfilled before the individual is
promoted to the position orl does the fulfilling of the underfill
conditions confirm that person in the position to which he or she
has been promoted.
To make this determination, evidence of what actually took
place at' the time the position was filled is essential. This
evidence includes such things as the job posting, the position
specification, the class standard for the position, the results of
the job posting and the conditions of the underfill assignment
which are required- to be in writing according to the Underfill
Assignment Policy in the Manual of Administration.
None of this essential evidence was provided to us.
The Chair makes mention in his decision that the Union counsel
argued that the grievor had been appointed to the underfill
position as a Clerk 3 General but did not, adduce evidence in
support of his position.
I point out that the preliminary objection was made by the
employer. Surely, the party making the preliminary objection is
the party that' has the onus of adducing evidence required to
sustain that objection. The employer in this case is claiming that
the original position was classified as a Clerk 2. The employer
has not produced any of the evidence required to sustain this
position.
The only evidence brought in this regard is Exhibit 8, the
June 14, 1982, memorandum signed by the grievor; but even the Chair
admits that _ this evidence, standing alone, would not be
determinative.
<t... to
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Balanced against this is Exhibit "6, a grievance wherein the
grievor had claimed she wa~improperly classified as a Clerk 3
Underfill.
Surely this evidence forms no basis to conclude the grievor's
position at the time of the underfill was classified according to
the standards as a Clerk 2.
Additional evidence to mitigate against a conclusion that the
grievor's position was classified as, Clerk 2 stems from the
definitions of I1Underfill Assignment II in Exhibit 7, the policy
extract from the Manual of Administration.
, There is agreement by all that this case involves "underfill"
and that the Underfill Policy of Exhibit 7 applies. The definition
of IIUnderfill A13signment II should not be evaded or ignored. It
stat~s that an underfill assignment occurs when a person lacking
the full qualifications for a position, is assigned to the position
but is paid at a classification level lower than that established
for the position. There is no question that the grievor was paid
at a Clerk 2 level - not lower than Clerk 2. 'If she was really
assigned to a Clerk 2 position for which she was paid at a Clerk 2
rate, it is logical to conclude she was performing the duties of
her Clerk 2 position and no underfill condition would be involved.
The Chair also puts great weight on the words used by ,the
parties in filing their Statement of Claim and upon the notion that
the Union did/P~~ile fro~ the contents of its statement. I cannot
accept the rationale of the Chair that the words used by the
parties in a Statement of Claim, made a long time before any Social
Contract Local Agreements existed, should,be persuasive in deciding
the issue. There was no need for the parties to be extremely
careful in how they used the word 11 classification", because the
issue of non-arbitrability was not there. The Board would decide
the actual issue, no matter what label was used in correspondence
by the parties. It is the substance of the claim that is important
and not a simple misuse of a word or a label.
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In addition, I am concerned about the fairness of putting
great weight on the effect of the words in the Statements of Claim
when neither party even raised this issue before us. Nor did any
members of the Panel raise this issue. Surely, if it is to be
given such weight that it really swings the balance in deciding the
issue, the parties' should have been so alerted and given the
opportunity to make representations to the Panel on this issue.
In conclusion, I would. find that the employer has failed to
establish that the grievor's position at the relevant time was
classified as Clerk 2. None of the normal evidence 'required to
establish this was brought before us., It, is incorrect for us to
conclude at this stage that this is a classification grievance.
I would dismiss this preliminary objection of the employer.
-~-t:?rv/
PeterKlym
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