HomeMy WebLinkAbout1983-0377.Lam.84-02-22Before:
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before :
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Melania Lam) Grievor
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The Crown .in Right of Ontario
(Ministry of Transportation
and Communications) Employer
E.B. Jolliffe, Q.C. Vice Chairman
F.D. .Collom Member
3. Morrow 'Member
For the Grievor: N.A. Luczay
Grievance Officer Ontario Public Service Employees Union
For the Employer: R.B. Itenson Senior Staff Relations Officer
Staff Relations Division
Civil Service Commission
Hearing: .-__-._ November 15, 1983
DECISION
Early in August,, 1982. Ms. Mclania Lam was employed
as a Clerk 3 ~encral with an Accounting Unit of the Ministry of
Transportation and Communications at Toronto. 0” August 10, 1~982.
however, she signed acceptance of an assignment to the position
of Clerk 2 Wail, also at Toronto, and she again signed acceptance
in October, 1982.
By her grievance dated April 20. 1963, Ms. Lam complained
“that Management did not comply with articles 21-2-1 and 24-2-3
with respect to my placement !” and she scught “confirmation as
Clerk 3 General.”
Whether the employer had failed to comply with the
specified articles in the collective agreement is a question which
goes to the merits. What must be decided at this time is not
the merits of the grievance but the preliminary objection to
arbitrability which was raised and argued before this Board on
November 15. 1983.
The employer contends that since the grievance was not
presented u.?tii some eight months after the placement complained
of, it is grossly out of time. The position :akcn by the griever’s
representative is that the grievance is a “continuing grievance”
and therefore must be deemed timely’.
The facts surrounding the griever’s problem require
explanation. In the year 1982 certain office work of the Ministry.
was “relocated from Metropolitan Toronto to the City of Kingston.”
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The Union was notified, according to its representative, Mr.
Luczay; and in August received a list of the employees affected.
As happens in such circumstances, some of those affected were
willing to move to Kingston; others were not. Among the latter
was the griever.
As appears from Exhibits 3 and 4, the problem was dis-
cussed on the telephone between the griever and Staffing Officer
Glenys F.B. Avery'on October 27 and August 3. In brief, the
griever was offered a position. in Toronto at a lower level and
she twice~ signed her acceptance in tiriting. The differences between
the two letters, Exhibi-ts 3 and 4, was due to a typing error in
the first, corrected in the second.
Exhibit 3 dated Augu~st..4,, 1982, addressed to "Dear
Melania" by Ms. Avery was as follows:
Re: 'IC 82-128, Mail Sorter,
Clerk 2 Mail
In reference to our conversation on Wasday, Aqust 3, 1982
I a-r pleased to confirm your assignment to the above-noted
position.
A starting date of Monday, August 16, 1982 has been arranged.
You are to reprt for duty at %:30 a.m. to Sara Taylor as
discussed.
In accepting this assiqment you realize that you are being
placed in a classification lower than the one you now hold.
As such, you will be afforded salary protection atyour current
maximum rate of Clerk 3 General, includiq any revisions
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applicable to the salary range of that classification during
the present salary cycle, effective until Becember 31, 1983.
Ycu will remain at that rate until such tine as th? Clerk 3
General classification overtakes the rate or until you receive
a promot1cn.
I should add that ycu are still free to apply for any advertised
pxition for uhich you feel qualified. Failure to accept this
assignment precludes any further consideration tiing extended to
you as a surplus employee and till result in your being subject
to future lay off. Please sign this letter where indicated a&
return to my attention indicating your intentions.
May I take this opportunity to wish ycu gocd luck in your new
assignment. IJmsureycxwilldowzll.
The griever signified her agreement by signing above -
the words “I do accept the above assignment .” Below her signature
appears a date: “10 Aug 1982.”
The second letter, Exhibit 4. addressed to “Mrs. Melania
Lam” by Ms. Avery and dated Oct.ober 28, 1982, sought to make clear
that the new position was in the “Clerk 2 Mail” classification, not
the “Clerk 3 General” classification. The amending letter, Exhibit
4, was as follows:
Rc: ‘K 82-128, !-tail Sorter
Clerk 2 Mai 1
I axfirm my telephone csxvcrsatisn cnth you of kdnesday, October
27, 19R2 confirming the need to correct a typing error In your
letter of August 4, 1982.
Ycur starting date was Monday, August 16, 1982.
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In accepting yair a&ignment, you were placed in a classification
lower than the one ycu previously held. As a result, you will be
afforded salary protection at your current maximum rate of Clerk
3 General, including any revisions applicable to ths salary range
of that classification during the present salary cycle, effective
until December 31, 1983. Ycu will remain at that rate until such
tin% as the Clerk 2 Mai1 classification overtakes the rate or
until ya receive a promotion.
In your new position, you are still eligible to apply to any
advertised position for &ich you feel qualified.
Failure to accept this position, precluded further consideration
baing extended to you as a surplus employee and wuld result in being
subject to future lay off.
Please sign this letter and return to my attention confirming your
intentions.
I wish you continuing_success in your position.
The grie'vor again signified agreement by signing above
the words "I do accept the above assignm~ent." No date appears,
but it may be inferred that she signed shortly after October 28.
It is apparent that the griever had little or no knowledge
of the collective agreement or its Article 24. At some point she
was advised that she may' have had certain rights under that Article,
and in April she grieved a violation and claimed confirmation of
her status at the Clerk 3 General level. As explained in Ms.
Avery's letters, her salary remained at that. level "including .any
revisions applicable to the salary range of that classification
during the present salary cycle, eff~ective until December 31, 1983,"
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but thereafter her salary would be “frozen”, i .c. remain the same,
unt i 1 exceeded by subsequent increases in t:hc Clerk 2 Mail scale.
In other words, she was “red-circled.”
Incidentally, as explained by the employer’s represcnt-
ative, Mr. Itcnson. the Clerk 2 Mail rate is not oniy lower than
the Clerk 3 General rate: it 1s lower than the Clerk 2 Gonerai
rate. Thus, although the gricvor’s salary was not lmpaircd in
1982 or 1983, it is obvious that she would lose c0nsiderabi.y in
later years, unless of course she won promotion to a much higher
level than that of a Clerk 2 Mail.
Article 24 of the collective agreement, headed “Job
Security ,I# embodies a series of provisions designed to afford some
measure of protectron and equity when a lay-off occurs “by reason
of shortage of work or funds or the abolition of a position or
other material change in organization.. .” The application of such
provisions will not be discussed in this decision bcca?lse we cannot
adjudicate upon the merits of the grrcvancc at. this time. Suffice
It to say that the numerous clauses in Article 24 are extremely
compiicated. Probably for that reason, the grirvor, her feliok.-
workers and the Union seem to have remained --- for some months ---
unaware that Article 24 might have some bcarlnq on the problem
of lay-off for employees unwilling to move to, Kingston. Just
what that application would mean; WC cannot say (not having heard
any evidence on the merits) but it is clear that relocation consti-
tuted a “material change in organization” within the meaning o
Article 24.1.
Complaints or differences between an employee and the
employer are made arbitrable by Section 19 of the Crown Employees
Collective Bargaining tact, and also by Article 27.4 of the
collective agreement between Management aboard of Cabinet and
Ontario Public Service Employees Union, but it is clearly provided
that such matters are to be processed from first to last "in
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accordance with the grievance procedure provided in the collective
agreement.. . ” The procedural requirements are.set out in the
following clauses of Article 27:
27.1 Its is the intent of this Agreement to adjust as quickly
as possible any complaints or differences between the
parties arising from the interpretation, application,
administration or alleged contravention of this Agree-
ment, including any question as to whether a matter is
arbi trable.
27.2.1 An employee who beiieves he has a complaint or a differ-
ence shall first distuss the complaint or difference with
his supervisor within twenty (20) days of first becoming
aware of the complaint or difference.
27.2.2 If any complaint or difference is not satisfactorily
settled by the supervisor within seven (7) days of the
discussion, it mny be processed within an additional
ten (IO) days in the following manner:
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STAGE CNE
27.3.1 The employee may file a grievance in writing with his
SUperViSOr. The supervisor shall give the griever his
decision in writing within seven (7) days of the
submission of the grievance.
It is not clear from the statements made to the Board
on behalf of the parties whether or when Ys. Lam initiated a
complaint under 27.2.1 above. h‘hat is clear and undisputed is
that the filing of “a grievance in writing,” ostensibly under
27.3.1, did not occur until April 20, 1983, almost six months
after Ms. Lam signed for the second time her acceptance of a
new position at the CIcrk 2 Mail level, and more than eight
months after she commenced work in that position on August 16,
1982. This delay was certainly far beyond the time limits con-
templated by Article 27, and it is the basis for the employer’s
contention that such an untimely grievance is not arbitrable.
Mr. Luczay has argued that this is a “continuing
grievance” in the sense that Ms. Lam is st i
in a certain position contrary to the requ 1
ment. Mr. Itenson argued to the contrary,
11 assigned to work
remcnts of the agree-
pointing out that the
assignment was made and became effective in August, that it was
accepted at that ‘ime in writing and that its acceptance was
confirmed in October.
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Issues somewhat similar to this were before the
Grievance Settlement Board in Parr 317/82 (Swan) and Goheen
321/82 (Verity). In both, grievances were dismissed as untimely,
having regard to the requirements spelt out in the collective
agreement.
With regret, the Board is obliged to hold that the
employ~er's objection must be upheld on the ground that the
grievance itself was untimely.. Our,reasons are as follows:
The time limits referred to in Article 27 appear to
be mandatory rather than directory. It was so held in Parr,
=pra , as agreed by the parties. In Article 27.11 it is provided
that "where a grievance is not processed within the time allowed
or has not been processed by the employee or 'the Union within
the time prescribed it shall be deemed to have been withdrawn."
Further, ttie Board is not persuaded that the alleged
breach of Article 24 was a "continuing breach." AS held in
Dominion Glass (1972) 1 L.A.C.(2d)151 (Reville) and other cases,
continuing violations are ones which involve repetitive breaches
of the collective agreement rather than a single or isolated
breach. If there was a breach as alleged here, it occurred by
way of the offer or assignment accepted by Ms. Lam in August and
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Oc:oter, 1982, which was not repeated daily, weekly or monthly
thereafter .
;.
Finally, i t wouid be unrea!lstic to deem the assign-
ment grievable for an indefinite pcr:od of time after rt had
been accepted In xritrng, inrtrally ln August xhcn Us. Lam
commenced work in hCr new positlor:. The second acceptance in
October was merely for the purpose of correcting an error made
in the previous letter to her.
It may seem inequit,ablc to deny Ms. Lam a hcarlng
on the real merits of her case, but we lack authority to grant
equitable relief. The parties have agreed in Article 27.14 that
“the Grievance Settlement Board shall have no jurisdiction to
alter, change, amend or enlarge any provision of the Collcctivc
Agreements. ” It may be noted that The Ontario Labour Relations
Act gives arbitrators the power to enlarge tlmc limits, but no
such provision appears In the Crown EmployeeS Collective Bargaining
Act.
The grievance was untimely and KWSL therefore be
dismissed.
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DATED at Toronto, Ontario this 22nd day of February, 1984.
E.B. Jolliffe, Q.C. Vi!ce Chairman
F.D. Collom Member
J. Morrow Member