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HomeMy WebLinkAbout1984-0203.Angus et al.89-11-28 DecisonON TAR10 CROWN EMPLOYEES EMPLOYEeS DE LA COURONNE DE L 'ON TA RIO Grievance Settlement Board CoMMlSSlON DE SETTLEMENT REGLEMENT DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8 - SUITE 2100 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 128- BUREAU2100 Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Angus et al) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: For the Grievor: For the Employer: Hear ing : Eric K. Slone Vice-Chairperson M. Lyons Member C. Linton Membe r J. Miko Job Evaluation Officer Ontario Public Services Employees Union J. Benedict Manager Staff Relations and Compensation Ministry of Correctional Services September 22, 1989 AWARD There are 100 grievors, all of whom at the time of their grievances in late 1983 were classified as Probation Officer 2’s and sought a higher classification. Their grievances have been partly resolved in lengthy and protracted proceedings which we will describe more fully below. In a nutshell, the Employer was ordered to create, and did create, a new classification for the Probation Officer series. The salary level was resolved through interest arbitration, and these grievors amongst all other PO’S achieved a pay increase effective from 1987. What they now seek is further retroactivity to November 13, 1983, together with an award of interest on the outstanding retroactive payment. The Employer claims that we have no jurisdiction to entertain the request on the basis that this Board is functus officio, in the sense that the matter has been fully disposed of by the previous panel. The Brandt Award Between August 29, 1984 and October 21, 1985, a panel of this Board chaired by Gregory Brandt, with union nominee Susan Kaufman and management nominee Donald Middleton, heard some 13 days of evidence. On the 10th of October 1986, the Board issued a very lengthy award consisting of 91 pages written by the Chairperson, a short dissent written by Mr. Middleton, and a 3 short partial dissent written by Ms. Kaufman. To summarize what went on before that panel and what it decided, we can do no better than quote from its award: at p.2: "This award deals with 6 classification grievances. They are 6 among a group of 100 classification grievances all of which involve grievors who are currently classified as Probation Officer 2 (PO2 and who seek classification as Probation Officer 3 (P03). Prior to the commencement of hearings the parties came to an agreement whereby the Union would proceed with the 6 grievances the awards in which would form the basis upon which the parties would attempt to negotiate a settlement of the remaining grievances. the Board would remain seized of jurisdiction to hear and dispose of the outstanding grievances," In the event that settlement could not be achieved "The parties also purported to reach some agreement as to the application of the evidence led in respect of these grievances to any further proceedings that may be necessary before this Board in relation to the other grievances. Counsel for the Union informed the Board on the first day of hearing that the parties were in agreement that 'all of the evidence for the first 6 grievances would continue to apply to the next cases but that the order of the Board would be final only with respect to the 6 grievances put before the Board'. not directly take issue with that statement. individual grievances and that the parties were looking for individual decisions," Counsel for the Employer did He stated that all are at p.85: "Thus, we have arrived at the situation where we find: 1. That the PO2 standard is inappropriate to describe the actual job duties of all the grievors at the time of the grievance; and 2. that those duties do not bring the grievors either on a standards or a usage approach within the PO3 classification; and 3. that this is not an appropriate case for using the 'best fit' approach in such a way as to bring the grievors within the PO3 classification. As the Divisional Court has stated in Berry and Canning (supra) we are not permitted to dismiss the grievances and simply 'confirm' the grievors in their existing classification. A breach of the Collective Agreement has been established to our satisfaction 4 and the grievors are entitled to a remedy. either to be placed in some other existing and appropriate classification or to be re-classified in a newly created classification. They are entitled We were not informed as to any other existing classification that might be appropriate. placing the grievors in a classification other than the one claimed. Nor do we read Berry or Canning as stating that the Board itself could create the classification into which the grievors should be placed. Indeed, that would appear to fly directly in the face of Section 18(1) of [the Crown EmPloyees Collective Bargaining Act] under which we derive our jurisdiction. Consequently, we have no basis for Consequently, what we are left with is an order directing the Employer to classify the grievors properly having regard to their duties. We so order." at p.91: "In summary, all of the grievances are allowed and it is hereby declared that the Employer classify the grievors properly." The Saltman Award Following the Brandt award, the Employer undertook a complete revision of the class standards for the series, and came up with a new classification that applied not only to the grievors but also to all Probation Officers in the Ministry. Because the parties could not agree on the appropriate level of compensation for the new classification, the issue was referred to arbitration before an interest board chaired by Maureen Saltman. In February 1989, the award was released with dissents from both the union nominee Larry Robins and the employer nominee Ian Cowan. To illustrate the situation before that board we can do no better than to quote from that award: at p.2: 5 "In December 1983, some 100 grievances were filed by Probation Officers claiming that they were improperly classified as PO 2's and requesting reclassification as PO 3's. came before a panel of the Grievance Settlement Board chaired by Vice-chairman Gregory Brandt. was agreed that the Union would proceed with six of the grievances; that the Board would issue an award on the six grievances; and that the parties would attempt to negotiate a settlement with respect to the other 94 grievances based on the Board's award. reached, the Board retained jurisdiction to deal with the outstanding grievances. On October 19, 1986, the Board issued its award on the six grievances: see Angus et al., G.S.B. 203/84. The Board concluded (1) that the PO 2 class standard did not adequately reflect the nature of the work performed by the grievors; and (2) that the work was also not covered under the PO 3 standard." The grievances At the outset of the hearings, it In the event that a settlement could not be at p.4-5 "By way of remedy, the Board directed the Employer to classify the employees properly having regard to their duties... "In August 1987, the Employer created a new class standard for the PO class series. The revised standard was approved by the Civil Service Commission on July 29, 1987 and agreed to by the Union in or around January 1988... "Notwithstanding agreement on the content of the class standard, the parties could not agree on a salary range for the revised standard. for determination under Article 5.8 of the Collective Agreement, which reads as follows: Accordingly, they referred their salary dispute 5.8 at p. 14: When a new classification is to be created or an existing classification is to be revised, at the request of either party the parties shall meet within thirty (30) days to negotiate the salary range for the new or revised classification, provided that should no agreement be reached between the parties, then the Employer will set the salary range for the new or revised classification subject to the right of the parties to have the rate determined by arbitration. "Taking into account all the factors set out herein, an increase of 6% in the salary ranges for both PO 1 and PO 2 levels is, therefore, awarded. By agreement of the parties, this increase will be effective from July 29, 1987, which is the date of the submission, as well as the approval, of the revised class standard to the Civil Service .Commission. additional retroactivity for those employees whose grievances were consolidated under the Angus case, in our view this matter is Although the Union requested properly within the jurisdiction of the Grievance Settlement Board to which those grievances were referred. length of time that has passed since the filing of those grievances, we would urge the parties to attempt to settle the issue of retroactivity between themselves. Should they be unable to do so, however, the matter would have to be determined by the Grievance Settlement Board." However, in light of the Following the advice of Ms. Saltman, the Union has brought on for hearing the 100 original grievances. When this panel learned of the history of the matter, we asked the parties whether it might not be more appropriate for Mr. Brandt to hear the matter, either with new nominees or as a single arbitrator. It was clearly impossible to empanel the entire previous board owing to the death of Mr. Middleton and Ms. Kaufman's departure from the Board, The parties both agreed that they had no objection to this panel hearing the matter, and that we could regard ourselves in the same position as if we had issued the Brandt award. The Functus Officio Argument Counsel for the Employer, as noted, objects to the Grievance Settlement Board issuing any further awards or applying any additional remedies. It is his view that the Brandt award was final in all respects, and that the grievors received their remedy, namely reclassification. Counsel for the grievors, on the other hand, argues that the Brandt board did not complete the task, and that it both 7 expressly and implicitly retained jurisdiction to resolve any further matters that arose in the implementation of the award. She argues that the questions of retroactivity and interest are such unresolved matters. We accept the law as stated by Vice-Chairperson Prichard in the case of Finliano GSB 218/79, at p.12: "...once a board of arbitration has completed its decision-making and issued its decision, its jurisdiction is terminated and it has no power to render any further decision or award. where a board of arbitration reserves jurisdiction to deal with the question of remedy or parts thereof, its jurisdiction is continued to the extent of that reservation.. Thus, where at the request of the parties or on its own initiative a board retains jurisdiction with regard to some aspect of the decision, the board is not functus officio. The difficult question raised by this case is whether the reservation of jurisdiction on one issue retains the Board's jurisdiction on all matters in dispute before the Board or only with respect to the matter specifically reserved. That is, is the Board functus officio on all matters except those actually reserved or does the doctrine of functus apply only when the Board has disposed of all matters in dispute before it." However, and at p.13: "However, we do not accept this expansive notion of our jurisdiction since we do not believe it is supported by the authorities and we are not sure that as a matter of policy that the Board's processes would in general be facilitated by adopting such a notion. functus officio in arbitral proceedings originated in purely consensual commercial arbitrations and that it is not necessarily equally suitable in or applicable to a statutory labour tribunal such as ours, we do believe that at its heart lie certain desirable concepts. It offers finality to proceedings, giving rise to final awards which the parties may interpret, enforce or review. It creates an incentive for parties to put their full and best case before the Board at one time, subject to express reservation of certain matters to a subsequent stage in the proceedings. Perhaps most importantly it permits the parties and the Board to agree to bifurcate the proceedings between, for example, liability and remedy, without inviting a rehearing of the entire case at the second stage in the proceedings." While we accept the fact that the doctrine of and at.p.14 8 "Rather, the better view is that jurisdiction is retained only with regard to those issues on which jurisdiction is reserved either expressly or implicitly and those issues on which the board has not reached a final conclusion. retained becomes therefore a question of fact to be resolved by reference to the board's decision and the conduct of the proceedings before it." Whether or not jurisdiction is Thus, the threshold issue before us is whether or not the Brandt board expressly or implicitly reserved jurisdiction to deal with the matters of retroactivity and interest. Curious as it may seem, we must make a distinction between the six grievors whose cases were fully heard, and the other 94 whose cases were awaiting the outcome of the first six. As for those 94 grievors, we find that the Brandt board expressly reserved jurisdiction to continue hearing their grievances. We rely on the following passages from the award, as also reproduced above: "This award deals with 6 classification grievances. They are 6 among a group of 100 classification grievances all of which involve grievors who are currently classified as Probation Officer 2 (P02) and who seek classification as Probation Officer 3 (P03)...In summary, all of the grievances are allowed and it is hereby declared that the Employer classify the grievors properly." (emphasis added) We believe that it is perfectly clear that the Brandt award only disposed of the six grievances, to the extent that it did, and did not even begin to consider the other 94. To the extent that the reclassification assisted those 94, it cannot be said 9 that the award dealt with their grievances because they are in no better position than the many other probation officers in the Ministry, who did not grieve but ended up reclassified. We accordingly find that the grievances of the 94 grievors have not been disposed of at all, but were in effect adjourned sine die pending the reclassification. It was therefore perfectly proper for the Union to seek to have those grievances brought on for disposition, and for this board to consider whether retroactivity and interest ought to be awarded. As for the other six, we are of the view that there was an implicit reservation of jurisdiction. Even though the Brandt panel awarded the remedy of reclassification, it is obvious from reading the long award that it did not turn its mind to the issues of retroactivity or interest, both of which would have been logical issues to address. It simply never got that far. In such a case, it would be harsh and unduly rigid to suggest that a board cannot be approached to complete what it has started. It would obviously be different had that board considered the issues and rejected them. The doctrine of functus officio means that you only get one kick at the can. It is perfectly consistent with Mr. Prichard’s statements in Finliano to find such an implicit reservation of jurisdiction in this case. The question of jurisdiction surely does not depend entirely upon whether the arbitrator has remembered to add the 10 magic words "and if the parties have any difficulty in the implementation of this award we will remain seized etc.", or words to that effect. The use of those words might be the best evidence of a retention of jurisdiction, and might represent good practice, but it would not be the only possible basis to conclude that jurisdiction was retained. For that matter, the use of an express reservation might even be ineffective in a case where the board had truly dealt with everything before it. Accordingly, we find that the issues of retroactivity and interest for the original six grievors remain outstanding, and this panel has the jurisdiction to consider the appropriateness of such further relief. The Merits of the Grievances We now turn our attention to the question of whether or not all 100 grievors should receive additional retroactive payment with interest on the amounts owing. The argument for retroactivity is simple. The grievors established that they were wrongly classified, and had there been a suitable classification in which to place them, there would have been no reason to depart from the usual practice of making the reclassification retroactive to 20 days before the filing of the grievance. Why, it is argued, should the grievors be 11 penalized because there was no appropriate classification? It is the Employer’s responsibility to create classifications, and it should not profit from its failure to create a proper classification. Where the Board issues an order to reclassify, this ought not to be a second-class remedy. That would fly in the face of the Divisional Court’s judgment in Berry-(unreported, March 13, 1986) wherein the broad remedial jurisdiction of this Board was remarked upon. Counsel for the Employer offered no real argument as to why the grievors should not have their complete remedies. He alerted us to the fact that this would cost the Employer a lot of money, but that is surely not a valid consideration. The Employer has had the benefit of the work that the grievors did while wrongly classified and thus underpaid. All we would be doing is make the Employer pay a fair wage for the work it received. The equities overwhelmingly favour the grievors, We do not find it necessary to recite the many authorities that have established the principles of retroactivity and interest. Those cases all support the grievors. None of them support the Employer. Accordingly, we allow all of the 100 grievances to the extent that they are before us, and declare that all grievors shall enjoy the rate of pay established by the Saltman award 12 retroactive to November 13, 1983, which is 20 days before the earliest of the grievances. In addition, all grievors shall be entitled to interest on the retroactive payments in accordance with the well-established formula set forth in Jones GSB 537/82 (Joliffe). Since this may involve some complicated mathematics, we will leave it to the parties at first instance to attempt to work out the proper amounts. However, and so there is no doubt in the minds of the parties, we will remain seized to be addressed further on any issues relating to the implementation of this award. Dated at Toronto this 28th day of November, 1989 K Slone Eric K. Slone, Vice-Chairperson Lyons, Member I dissent" (Dissent to follow) C. Linton, Member