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HomeMy WebLinkAbout1978-0109.Cheng.79-11-26109/78 Between: Before: IN THE MATTER OF AN ARBITRATION. Under the CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD Before THE GRIEVANCE SETTLEMENT BOARD Ms. Shu-Tsing Cheng Grievor and The Crown in Right of Ontario Ministry of Natural Resources Employer Prof. M. A. Eberts Vice-Chairman Mr. A. Fortier Member Mr. I. K. Levack Member For the Grievor: For the Employer! Hearing: Mr. G. Richards Ontario Public Service Employees Union Mr. A. H. Schaefer Civil Service Commission November 6, 1979 .-s -. ~-.. ., - 2- .The grievor complains that she is receiving an inadequate rate of pay. The difficulty arose because of abolition of her original position in the Ministry and her consequent transfer to a lower-paying position, in the same Ministry. She was "red-circled" and given some protection of her higher rate of pay, but argues that the protection was inadequate. The parties agree that resolution of the matter turns on the construction to be given to Article 5.5 (1) of the Working Conditions Agreement (February 1, 1978 to January 31, 1979). They each have different interpretations of that Article. It reads: 5.5 1. Where, because of the abolition of a position, an employee is assigned (a) from one posftion in a Ministry to another position in the same Ministry or (b) from a position in one Ministry to .a position in another Ministry, and the position to which he is assigned is in a class with a lower maxiumum salary than the maximum salary for the class of the position from which he was assigned, he shall continue to be entitled to salary progressions based on merit-to the maxi- mum salary of the higher classification including any prevision of the maximum salary of the higher classification that takes effect during the salary cycle in which the assignment takes place. Before discussing the different versions of that Article contended for by the Ministry and the Union, a survey of the facts is in,order. The grievor was hired by the Ministry as a Draftsman 1 in 1975, and continued in that position until it was abolished on February 9, 1977. At the time of its abolition, the grievor was at the third step in the Draftsman 1 salary range, having been put there by a merit increase on February 1, 1977: her "anniversary date" in employment. There are five steps in the Draftsman salary range. Her actual pay on February 1, 1977 and at the time of the abolition of her position, was $221.34 per week. The parties stipulated that the pay range for Draftsman 1; from October 1, 19?6 to September 30, 1977 [the period of the relevant Wage Collective Agreement, Technical Services Category) was as follows: Draftsman 1 Step 1 Step 2 Step 3 Step 4 Step 5 Week1 y 206.27 213.48 221.34 229.21 237.40 Yearly 10,763 11,139 11,549 11,960 12,387 It will be seen that the highest figure for the range was $237.40 per week during the time of that Wage Collective'Agreement; the grievor's position on the range is underlined. When her position was abolished, Ms. Cheng was made a Cartographic Technician 3. The pay rates for that position, .under the October 1, 1976 - September 30, 1977 Wage Collective Agreement were as follows: Cartographic Technician 3 Step 1 Step 2 Step 3 Step 4 Step 5 , Weekly 201.84 209.02 216.52 224.36 232.18 Year1 y 10,532 10,906 11,298 11,707 12,115 The step 3 rate was lower than Ms. Cheng's former rate; the step 4 rate was higher. The step 5 maximum for a Cartographic Technician 3 at this time was lower than the step 5 maximum for a Draftsman 1. Ms. Cheng was continued in her rate of $221.34 (which fell halfway between step 3 and step 4 on the C.T. 3 range) until the end.of September 1977: she was "red circled." In order to understand what happened next, and the criticism made of it by the grievor, i t is necessary to set out the pay rates for Draftsman 1 and Cartographic Technician 3 over the period of three Wage Collective Agreements: those of October 1, 1976 to September 30, 1977; October 1, 1977 to September 30, 1978; and October 1, 1978 to September 30, 1979. (Only weekly rates are given. All figures are from the Appendix to the Wage .i ,. -4- Collective Agreements for the Technical Services Category and were stipu- lated as accurate by the parties.). Cartographic Technician 3 Step 1 Step 2 Step 3 Step 4 Step 5 Oct. l/76 - Sept. 30/77 201.84 209.02 Oct. l/77 - Sept. 30/78 219.60 226.96 _ Oct. l/78 - Sept. 30/79 236.29 243.76 i Draftsman 1 Step 1 Step 2 Oct. l/76 - S;pt. 30/77 206.27 213.48 act. l/77 - Sept. 30/78 224.14' 231.53 Oct. l/78 - Sept. 30/79 240.90 248.40 Ms. Cheng made the following progression in salary, on the draftsman 3 scale: i sl A as of Sept. 30/77 red circle between step 3 and step 4 221.34 on Oct. l/77 general increase step 3 234.64 0 on Feb. l/78 merit increase step 4 242.68 on Oct. l/78 general increase step 4 259.72 on Feb. l/79 merit increase step 5 267.85 (These moves are shown on the chart as@,@ @,@ and@respectively.) Ms. Cheng argues that it was contrary to Article 5.5(l) of the Working Conditions Agreement (February 1, 1978 to January 31, 1979) for the Ministry to have kept her on the Cartographic Technician 3 "track" while there were still merit increase steps 4 and 5 left open on the Draftsman 1 "track." She'contends that her progression in salary should have been on the Draftsman 1 scale, as follows: c L -5- (AA) as of Sept. 30/77 red circle step 3 221.34 (BB) on oat. l/77 general increase step.3 239.58 (CC) on Feb. l/78 merit increase step 4 '247.65 (DD) on Oct. l/78 general increase step 4 264.76 (EE) on Feb. 1179 merit increase step 5 273.29 (These moves are shown on the chart as (AA) (BB). (CC) (DD) and (EE) respectively) It will be seen that there is a difference of about $5 to 6 per week at each stage between what the Ministry paid Ms. Cheng and what she claims. The argument for the grievor is as follows. Ordinarily, reassignment to a position with a lower rate of pay would bring with it a reduction in rate, unless a contractual term to sustain the former higher rate of pay c,an be found. Article 5.5(l) is such a term and it sustains the higher rate of pay, in the grievor's submission, until "the maximum salary of the higher classification" has been attained as a result of "salary progressions based on merit." In the griever's case this would sustain the higher rate until step 5 of the Draftsman I range had been reached. This is so because Cartographic Technician 3 ("the position to which ES) he is assigned") is throughoutthe whole period'in'question "in a class with a lower maximum salary than the maximum salary for the class of posi- tion from which Cs3 he,was assigned" Draftsman I). The grievor's representative argued that the beneficial effect of the first part of Article 5.5 was not limited to only one "salary cycle" -- the meaning of which, agreed upon by the parties, was one "salary category, agreement" period. To make this submission, he argued that the last phrase of Article 5.5.(l)(b) ;.. '. mcltiding any revision of the maximum salary of the higher classification, that takes effect during the salary cycle in which the assignment takes place should not be construed as words of limitation. They were, he argued, intended to extend the benevolent reach of the Article: without them, only merit increases would come to the employee; with them, she would be eligible for any general increases to the maximum made during the life of a collective agreement. -6- Accordingly, he argued, the apparently limiting connotations of "during the salary cycle" should be confined to the last phrase only, and not affect the main thrust of the section. Alternatively, he argued, the last phrase should be omitted from consideration altogether. 'Accepting this submission at its face value might mean that the grievor would be entitled to Draftsman 1 merit increases as long as there was in fact a gap between the Cartographic Technician 3 maximum and the D-aftsman 1 maximum. The grievor did not press this consequence, stating instead that a red circled employee would drop back to the lower scale once the maximum on the higher scale had been reached: in this case, once she had attained the step 5 Draftsman 1 rate. Presumably, then, she would be content to be paid $273.29 until the step 5 Cartographic Technician rate had caught up with that sum. We cannot uphold the grievor's contention. To do so would put her in a more favourable position than someone red-circled at the same time as she was who had by that time attained step 5 of the Draftsman rate. That person, with more actual experience in the higher paying job, would ,, have been red-circled at $237.40 until the Cartographic T~echnician 3 maximum caught up: until, in this case, only the next year, when the Cartographic Technician 3 maximum reached $250.69. From that time on, our hypothetical more experienced draftsman would have received increases on' the lower scale, (to, presumably, $267.85) whereas Ms. Cheng would have stayed on the draftsman scale until its October 1, 1978 step 5 maximum of $273.29 had been attained. This inherent inequity in consequences as between employees is a cogent reason for rejecting her submission. The interpretation of Article 5.5.(l) which supports the Ministry's actions here has more to reconnnend it than does the grievor's. The Ministry proceeds on the basis that it will pay the higher rate of pay until the -7- maximum salary for the lower-paid class reaches the maximum at the time of re-assignment "for the class of the position from which Cs3he was / assigned." This, is what they did in this case, giving Ms. Cheng her Draftsman 1 rate until the Cartographic Technician 3 maximum caught up with what had been the Draftsman 1 ,maximum at the time of her re- assignment. This happened with the October 1, 1977 - September 30, 1978 Wage Collective Agreement. Fixing the "maximum salary for the class of the position from which he was assigned" as of the date of re-assignment is the only way of reading the Article to be fair to employees at every step of the range while at the same time safeguarding individuals from sudden drastic drops in pay. We cannot believe that the parties did not intend this evenhandedness among employees when they made the agreement. The construction which supports the Ministry's actions here also allows proper account to be taken of the concluding phrase in the Article. The parties agreed that there were no revisions to the salaries of the Draftsman 1 or Cartographic Technician 3 classifications during the "salary cycle" in which the employee's position was abolished: October 1, 1976' - September 30, 1977. Had there been any such general revision (in contrast to a merit increase) the concluding words of Article 5.5.(l)(b) would have ensured that the employee benefitted thereby. We cannot ignore these words, ,or give the Article a construction that in effect repeals them, simply because on the facts no occasion for their application-arose during the time covered by the grievance. Accordingly, we find that the employee has been treated in accordance with the requirements of Article 5.5.(l) and dismiss the grievance. -a- DATED AT TORONTO this 26th day ofNovember 1979. \ h-q% Prof. i. A. Eberts Vice-Chairman I concur Mr. A. Fortier Member I concur Mr. I. K. Levack Member