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HomeMy WebLinkAbout1985-0492.Union.86-02-07INTHEMA?TEROFAGRDVANCE under 'JXECROI#FNPUmESCQLLE~~E4RGAININGA~ Before THEGR.EvANcEs-BOARD Between: OPSEU @Con Grievance) Grievor The CL-o& in Fight oft Ontario (Ministry of Transportation and Cimnnmications) mloyer Before: R.J. Roberts Vice-Chairman E. McVey Member W.A. Lobraico Member For the Grievor: S. Goudge, QC. Cowling & Henderscm Barristers & Solicitors For the Rnployer: L. Horton Staff Relations Officer Staff Relations Branch Civil Service Commission I HW5.t-g: November 26th, 1985 ‘... . 2. _.. DECISION ive In the grievance leading to this arbitration, the Union requested a declaration that Article 5.8 of the Collect Agreement was violated when the Ministry refused to meet to negotiate a salary range for a classification which, to the knowledge of the Union, was beings reviewed for purposes of revision. The Ministry refused to consider arranging any such meeting until after the revised class standards were completed and issued by the Civil Service Commission. For reasons which follow, the grievance is allowed in part., The evidence indicated-that in early 1985,-the - Union became aware that the class standards for the TechnicLan, Photographic Series, were being reviewed by the Civil Service Commission in conjunction with the Ministry for purposes of revision. On March 18, 1985, the Union sent the following letter to the Commission: MT. J. R. Scott Assistant Deputy Minister Civil Service Commission Staff Relations 6 Compensation Division Frost Building South, Room 249 Queen's Park, Ontario M7A 125 Dear Mr. Scott: Re: Classification Grievance of Bargaining Unit Members in the Reprographic Centre - Ministry of Transportation h Communications We are aware that for some period of time stretching over a number of years that the Commission and the Ministry of Transportation & Communications have been engaged in the revision of the classification of bargaining unit employees working in the abode- 3. captioned centre. Further, we are aware. that certain dates for discussion of these revisions have been offered by line-management to representatives of employees in the Reprographic Centre, but have not’been kept. Therefore, under the provisons of Article 5.8 ‘of the existing Collective Agreement between Management Board of Cabinet and’OPSEU, we.are.requesting a meeting within 30 days to negotiate a salary range pursant to the revisions and/or modifications currently under consideration by the Ministry and’ the Commission. In our opinion, failure to hold such meeting would clearly,~ under the facts of this case, be the subject of a policy grievance. Kindly contact the writer to arrange a mutually convenient mee,ting. very truly, Patrick A. Sheppard Grievance Officer This letter was styled as a request under Article 5.8 of the Collective Agreement for a meeting within 30 days to negotiate a salary range for the revised class standards. On April 1, 1985, Mr. W. J. Gorchinsky responded on behalf of the Commission with the following letter: Ontario Public Service Employees Union, 1901 Yonge Street, Toronto, Ontario M4S 225. Attn. Mr. Patrick A. Sheppard, Grievance Officer., Dear Sir: Re: Reprographic Centre Ministry of Transportation & Communication : This will acknqwledge'your'letter dated March 18, 1985. with 4. respect to the classification of employees in the above noted centre. The classification standards for these employees are under review. At such time as the standards are completed and when issued as revised standards, a meeting can be arranged to discuss the salary ranges for the revisedstandards, in accordance with the provisions of Section 5.0 of the Working Conditions and Employee Benefits Agreement. Any meeting prior to the completion and issue of the revised standards would be at.a minimum, premature. It is also to be noted that salaries for the Technical Services Category are now to be determined by a Board of Arbitration. If the Union is concerned about the level of salaries now paid, the Union is;, of course, free to make submissions to the Board in this respect. Yours truly, W. J. Gorchinsky, Director. In this letter, the Commission took the position that Article 5.8 did not require a meeting until after the ~revised standards had been issued by the Commission. On June llth, the Union grieved that this refusal by the Commission violated the Article. At the hearing, the Ministry called as a witness MS . Judy Kroon, a Standards Project Supervisor with the Pay and Classification Branch of the Civil Service Commission. MS. Xroon gave detailed testimony as to the time,-consuming and pains-taking nature of the process that is undertaken in the review of classification standards for purposes of . 5. ..f . ,i;z < .i: .~. ‘. : 1 . . . ‘.‘.:,,. ‘,-’ :., ,. ‘. revision. The revision of the class standards at hand, she testified, commenced before she arrived on the scene in May, 1983. She then guided the project through three di.stinct stages. The first of these involved gathering preliminary background information reqarding.the problems being experienced by the requesting Ministry in classifying jobs against the existing standards. Ms. Xroon testified that ifit were to be found that the problem did not reside in the standards but, instead, with the Ministry, the review could end at ; this stage. If'it was decided that the standards d~ii&%>ision,- the project would go to stage two,. which was described as a data collection and primary analysis stage. Essentially, this involved job audits, interviews with personnel and line managers, and other forms of information gathering. Thereafter, the information would be analysed to, e.g., tentatively identify how many levels of work were involved. Finally, a tentative draft of revised class standards would be produced. These tentative class standards would be circulated to major-user Ministries for comment and pre-allocation of all positions against the proposed,standards. Once this process was completed, Ms. Kroon testified, the proposed revisions and pre-allocation information would be put together in a package and sent to Pay Policy 6. for ~consideration of the cost implications of the new standards. At the same time, a copy of this package would be sent to the Union for comment. Ms. Xroon stressed that at this stage the class standards could still be changed to clear up ambiguities, inconsistencies,‘or inaccuracies. She stated that she and her staff would change the draft in response to Union's comments and advise Pay Policy of such changes in order to update the standards. MS. Xroon further testified that it was only after the above steps had been completed that the project would go to its final stage, i.e.~,-submission ofm~the final-draft of the proposed revised standards to the Chairman and Board of the Civil Service Commission with a recommendation that they be approved. Once this approval was obtained, Ms. Kroon stated, there would be an automatic mandate from'Management Board of Cabinet to negotiate new rates with the Union. It was at this point, she testified; that Article 5.8 of the Collective Agreement would come into play. Article 5.8 of the Collective Agreement provides as follows: ARTICLE 5 - CLASSIFICATION PROCEDURE . . . . . 5.6 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 I. .:. the salary range for the new'or revised classifi- cation, 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. The ambiguity which has led to the present proceeding is obvious at first glance. Initially, it appears that either party may make an Article 5.8 request "when...an existing classification is to be revised." Halfway through its text, however, the Article speaks as if a "new or revised classification" to which both parties can refer already exists. In resolving this ambiguity, the'Board must, as a matter of construction of the intent of the parties, determine which of several different dates should be the one to trigger an Article 5.8 request. Should it be the commencement date of the review project, the~date of submission of the proposed package to Pay Policy and the Union, the date~of the final submission and recommendation to the Civil Service Commission, or the date of approval by the Commission? As we understand the submissions of the parties, the Union contends for the first of these dates while the Ministry contends for the last. On balance, we have reached the conclusion that neither of these could have been contemplated by the parties as the "trigger" date for an Article 5.8 request. On its 8. face, Article 5.8 contemplates that there must be something on the table for which to negotiate a new salary range. If',the "trigger" date for the Article were to be the date of commencement of the review project, it would be a virtual certainty that within the 30~day.s established inArticle 5.8, nothing of the sort would e.xist. Moreover, in light of MS. Kroon's testimony that some projects are abandoned at the end of stage one, there would be no certainty that any concrete form of revised classification would ever come forward for purposes of attracting a new salary range. Accordingly, the submissions of the Union on this score must be rejected. At the same time, the date for which the Ministry contended, i.e., the date of approval by the Civil Service Commission, likewise. must be rejected. This date, it seems to the Board, comes too late in the day to satisfy the requirements of Article 5.8. Article,5.8 plainly speaks in futuro , in the sense that it contemplates a request being made when an existing classification "is to be revised". For all intents and purposes, it .appears to the Board that once the Civil Service Commission approval is obtained, the classification 12 revised. Nothing save implementation is left for the future. This cannot be what the parties must have contemplated when they negotiated the in futuro lanaquage of Article 5.8. ,: : . 9. on all of the evidence, it seems to the Board that the most appropriate "trigger" date for an Article 5.8 request must be the date of the submission of the final form of the proposed revised standards to the Chairman and Members of the Board of the Civil Service Commission. It is at this point in time that there exist concrete proposals with no reasonable likelihood of further revision, and about which the parties might confidently negotiate a salary range. At no ,earlier stage in the process would this be true. Again, referring to Ms. Kroon's testimony, the proposed revisions stand liable to be revised even after transmission of the .packages to Pay Policy and the Union. Moreover, using~this date as the "trigger" date, satisfies the in futuro tenor of Article 5.8, in that at this stage the proposals remain proposals and will not become "revised" until the Commission gives its approval. The grievance is allowed to the extent indicated in the preceding paragraph of this award. There will be a declaration to the effect that the "trigger" date for an Article 5.8 request is the date of the submission to the Civil Service Commission, and not the date of approval. 10. DATED at London, Ontario, this 7th day.of February 1986. 1986. Vice-Chairman E. McVey, M,ember ~ , W. A. Lobraico, Member