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Home My WebLink About1981-0024.McLean.82-07-08IN THE MATTER OF A:? ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Mr. John McLean) - and - Grievor The Crown in Right of Ontario (!4inistry of Community and Social Services; Employer S. B. Linden, 2.C. - Vice Chairman 9. . Russell - Menbe F-. Collict - Itember For the Grievor: G. Richards Grievance/Classification Officer Ontario Public Service Employees Union Forthe 3. ,Moran, Counsel Hicks, Morley, Hamilton, Stewart & Storie Hearing : February 25, 1982 -2- AWARD THE GRIEVOR in this matter grieves,that he is improperly classified as an Occupational Instructor III. (The "grievance form" dated 28th July, 1980, was filed as Exhibit #I at the hearing). The grievor works at the Regional Facility for the Retarded near Orillia. He says he should be reclassified to "Industrial Officer III". THE UNION argues that there is a strong similarity between the two classifications but there is a difference in that an Industrial Officer works in an institutional or correctional setting whereas an Occupational Officer works in an institutional facility for the mentally retarded. There is also a substantial difference in the wages paid. There are ten overall, general broad categories of employment in the civil service under the provisions of The Crown Employees Collective Bargaining Act for the purpose of bargaining wages and benefits, etc. There are thousands of people in each category. There are at least 3,000 employees in the "correctional" category that the grievor wants to be put into and there are at least 10,000 employees in the insti- tutional category that he is now in. The Union submitted that -3- the only real difference between the categories is the place in which the employees work. The essence of'the grievance is that the "setting" or workplace should not make any difference to an employee's category. THE EMPLOYER argued that the main obstacle to the Union's argument is the award of Professor H. W. Arthurs, dated 18th December, 1979 with respect to a dispute concerning correctional employees. The employer argued that that award is an absolute bar 'to this grievance. COUNSEL SUBMITTED that this resolves upon a question of timeliness. He agreed that the chief dis- tinction between the two categories of employment is the location or setting. One institution concerns "health" whereas the other institution is custodial. This latter setting naturally involves an element of security. He pointed out that the parties to the Collective Agreement bargained along separate category lines and cautioned that if this grievance succeeds there are many people, perhaps thousands, who would want to move from one category to the other. His argument, in effect, is that this grievance is not arbitable. He referred the Board to section 18 of the Crown Employees Collective Bargaining Act. He submitted -4- that what is "bargainable" is wages, not duties. He argued that the employer has the right to unilaterally define the duties and titles. The Union then has the right to bargain the wages, benefits and conditions they want for those duties and titles. What is bargainable is how the standards are applied. The,differences between these two groups was sufficient to justify an illegal strike by the correctional people two years ago. Is the classifi- cation system supposed to establish equal pay for equal work? The employer's answer is no. That is for the Employment Standards Act to establish and is not the object of the classification system. THE EMPLOYER argued that to proceed with this grievance would have the effect of amending the whole classification procedure. He argued that as far as classifications are concerned, one starts with,the ten major categories and within each category there are occupational groupings, that is, jobs with a common skill base and within that there are class series and within each series there is a specific class. (Example: Category -- Institutional Care/Occupational Group -- Recreation and Vocational/Job -- Instruction Officer, Occupational/Class Series -- Instructional Occupational/ Specific Class -- Occupational Instructor III). -. 5 - IN REPLY, the Union agreed that the question of arbitrability is the threshold issue. He submitted that one can grieve vertically but not horizontally. He argued that the organization of the system into ten categories was done simply for wage negotiations. His position is that the only significance in a category system is for wage negotiations. He submitted that the parties can bargain these boundaries away because they exist only for purposes of wage negotiations and not for any other purpose. THE EMPLOYER submitted that this grievance, at this time, has the effect of altering the groups. He argued that the Union is estopped ~from raising this grievance for the period of time that Professor Arthurs referred to in his award. UNION COUNSEL SUBMITTED that the issue here is to determine which group this grievor belongs to. He submitted that that does not alter the existing bargaining groups. The employer, on the other hand, submitted that there may be no change on paper but, that the whole bar- gaining structure would be changed. He submitted that the Arthurs' award specifically deals with salaries and the -6- right of one group to negotiate separate from the others The date of this grievance before us is prior to January 1st) 1982. The employer pointed out that Professor Arthurs made a decision on which salaries are based and on which people are classified and then "froze" the position for two years. The union shall execute and deliver forthwith to the employer, as a condition of the coming into force of this award, the following under- taking: "The union agrees that the "cat- egorles" or bargaining groups set forth in the master agree- ment between the parties of February 1, 1977, as modified in the award of Professor H.W.. Arthurs dated December 21, 1979, shall be the bargaining groups or categories within the bar- gaining unit represented by the union, until at least January 1, 1982, and no attempt will be made by the union to create additional bargaining groups or alter existing bargaining groups prior to that date." This grievance was commenced before those two years had expired and accordingly, it is untimely according to the employer. THIS BOARD AGREES with the position advanced by the employer in so far as the effect of the Arthurs' award is concerned. Professor Arthurs specifically froze the positions he established in his award for a two year period. To permit the grievance which was lodged before -7- the two year period expired and proceed a~ this time would be in direct conflict with the letter and spirit of that award. Accordingly, we find the grievance is untimely and is accordingly dismissed. DATED,at Toronto, Ontario this Sth day of July, 19S2. S.B. Linden, Q.C. Vice Chairman R. Russell Member ‘g qp2 . (See Addendum attached) F. Collict Member -a- The L-employer mem ber is in concurrence with the award. However, the position of the Union in this case warrants .comment, as follows: (a) Section 18(l) of the Crown Employees Collective Bargaining Act provides that management has the right to establish the classification of positions and ".... such matters will not be the subject of collective bargaining nor come within the jurisdiction of the Board." (b) Section 6 of the Crown Employees Collective Bargaining Act-provides that the Union has the right to bargain the rates of remuneration for the various classifications established. c-4 In d letter to members of the Board, dated February 26, 1982, Counsel for the Union sets out its position as follows: "The Union submit that because the members of the bargaining unit are only divided into wage categories fc?-~eonvenience in bargaining, there is nothing to prevent an employee who grieves improper classification from requesting that he be assigned to a classification belonging in a different wage category, assuming that the details of his particular work assignment would justify such a claim." (d) The Union's position further, is that if the classifications are essentially the same,. then the qrievor should have the advantage of the higher rate of the two positions. (e) However, the Union has negotiated different rates for the two separate classifications. The parties, therefore, have agreed in their wage negotiations that there are factors in the job duties, or in their envircnmental factors, etc., which warrant a different rate of pay for the two positions. I -9- If the Board were to award a higher rate for the position currently occupied by the grievor, it would be tantamount to an amendment of the agreement reached between the parties - and this clearly would be in violation of Article 27.12 of the Collective Agreement. "The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreement." Alternatively, if the Board were to establish a Correctional Classification of Industrial Officer III within the Institutional category of position classification, this action clearly would be outside of the Board's juris- diction. (f) The issue raised in this case is one to be resolved through negotiation - not arbit,ration. June 21, 1962 F. Collict Member