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HomeMy WebLinkAbout1982-0564.OPSEU.89-11-30IN THE RATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Clerk 6 General) Grievor - and - The Crown in Right of Ontario (Management Board of Cabinet) Employer Before: For the Grievor: For the Employer: Hearings: R.L. Kennedy Vice-Chairperson I. Freedman Member G. Milley Member T. Hadwen Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors L. McIntosh Law Officer Crown Law Office, Civil Ministry of the Attorney General June 22, 1988 October 18, 1989 -2- INTERIM AWARD This Interim Award constitutes yet another chapter in the .lengthy saga between these parties relating to the'appropriate salary level to be paid to the Clerk 6 General classification. At the commencement of the hearing on June 22, 1988, a thick volume comprising an Agreed Statement of Facts and extensive supporting materials was filed before the Board. These facts may be briefly summarized as follows: The Clerk 6 General was first established as a bargaining unit position June 29, 1979. The position continued until December 31, 1985, when it was abolished by the introduction of the Office and Administrative Group classifications. The 1979 Clerical Services Category agreement was subsequently settled and provided for an overall increase of 3% based on the rates in force December 31, 1978, to be effective July 1, 1979. In applying that increase to the Clerk 6 General classification, the Employer took the position that, since there was no Clerk 6 General classification as of December 31, 1978, the settlement did not create any increase to the salary rate for that classification. Although there were a number of incumbents in the position, only one, Mr. Szalonczay, grieved the issue and claimed an increase effective July 1, 1979. Professor McLaren issued an award in that grievance June 23, 1981, and Szalonczay -3- was successful and was awarded then 3% increase. Szalonczay immediately filed further grievances claiming that the effect of the increase awarded by McLaren meant that his salary for the years 1980 and 1981 had also been incorrectly calculated in that they should have reflected the earlier increase. .Professor Prichard decided that grievance also in favour of the grievor in an award issued August 4, 1982. After the issuance of the Prichard award, the Union advised all of its Regional Officers of a potential entitlement for salary increases to all of those classified as Clerk 6 General, and immediately thereafter approximately 180,grievances were filed claiming improper payment of wages back to 1979 or until the date of the grievers' entry into the Clerk 6 General classification, if later. The Employer then proceeded to apply for judicial review of each of the McLaren and Prichard awards, and both applications were dismissed on their merits September 6, 1983 and further leave to appeal to the Court of Appeal was refused. When the first of the 180 grievances came on for hearing, the Employer objected to the timeliness of the grievance and further objected to the Board assuming any jurisdiction under expired collective agreements. In an award dated March 14, 1983 P -4- Mr. Weatherill held that it was a continuing grievance and was, therefore, filed in a timely manner, but he specifically made no determination as to the extent of the relief that would be granted in the event the grievance was ultimately successful. In a subsequent decision dated January 4, 1984, Weatherill then held that he was without jurisdiction to entertain the grievances by reason of the expiry of the collective agreements. The Union applied successfully for judicial review of that award, and the Divisional Court directed that the matters be heard and that the Grievance Settlement Board did possess jurisdiction to enforce vested rights under the expired collective agreements. The Clerical Services Category agreement for 1982 did contain different language from the language in prior collective agreements. In a further award issued by Mr. Weatherill dated March 12, 1984 the Board held that the change in language was material to the ongoing entitlement of grievors in the Clerk 6 General classification but did not resolve a Union argument that, because of Employer conduct in translating the negotiated settlement into contract language, the Employer was estopped from relying on the changed language. That issue was resolved in favour of the Union in the award of this Board chaired by P.M. Draper dated November 19, 1986. -5- Of the approximately 180 grievances originally filed there remain only 5 that require further resolution. This panel of the Board was constituted to resolve the outstanding issues and proceeded to hear the submissions of the parties upon the consent of both parties that the matters proceed before this panel of the Board. The matter was argued by the parties on June 22, 1988, and the arguments made it clear that an important issue in determining this matter would be the appropriate interpretation to apply to Article 27.2.1 of the collective agreement between the parties dealing 'withy individual grievances. It was further apparent that there existed previous decisions of this Board that could be considered to be in conflict on the appropriate interpretation of that Article. The issue had been canvassed in Pierre 492/86 (Verity), and we were advised that the Pierre decision was the subject matter of an application for judicial review by the Employer. In those circumstances it appeared to this Board to be appropriate to withhold its decision on the issue pending consideration of the matter by the courts. It was further apparent from the materials filed and the submissions of the parties that even if the Employer were successful in all of its arguments on all of the outstanding issues, there would still remain significant amounts due to these -6- Grievors payable for periods for which the grievances were clearly timely. Counsel indicated to us at the conclusion of the hearing that they would discuss whether arrangements could be made with respect to payments of amounts that were acknowledged to be owing. The hearing adjourned on that day, and it was the understanding of this Board that we would be asked to reconvene should there be problems with respect to such payment. At the request of counsel for the Union, in a letter to the Registrar dated September 21, 1989, the Board reconvened at Toronto October 18, 1989. After hearing the submissions of the parties, this Board now orders that the Grievors Evans, Foderick and Shewnarain each be paid a sum within three weeks of the date hereof, such sum to be calculated as follows: The difference between the proper wage rate and the wage rate actually paid from 20 days prior to the filing of each respective grievance until December 31, 1985 (unless the Grievor left the Clerk 6 General classification prior to December 31, 1985, iuwhich case the difference will be calculated until the date the Grievor left the classification), with interest 'payable to the date of payment calculated on the Hallowel House formula with interest adjusted annually on each anniversary of the date 20 days prior to the filing of the grievance to the prime rate for that year. -7- Failing payment within three weeks, this Board will reconvene on an expedited basis to hear submissions on the appropriate rate of interest or any other matter relating to the implementation of this order in those circumstances. This Board remains seized of all aspects of this matter including the resolution of any difficulties concerning the calculation of the payment, and upon being advised of the exact amount owing, we will issue an award to that effect. DATED this 30th day Of Movamber, 8 Ross L. Kennedy, Vice-Chairoerson Freedman, Member G. J. Mill@Y, Member