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PROVINCE OF NEW BRUNSWICK by iJm9I5

VIEWS: 13 PAGES: 14

									PROVINCE OF NEW BRUNSWICK

IN THE MATTER OF THE PUBLIC SERVICE
LABOUR RELATIONS ACT; AND

IN THE MATTER OF A COLLECTIVE AGREEMENT
BETWEEN BOARD OF MANAGEMENT AND
CANADIAN UNION OF PUBLIC EMPLOYEES,
LOCAL 1418; AND

IN THE MATTER OF A REFERENCE TO ADJUDICATION
OF A GRIEVANCE AFFECTING:

                              RENÉ PELLETIER,
                                                      Grievor
                                      -and-

                              CULTURE & SPORT SECRETARIAT,

                                                     Employer

APPEARANCES:                  For the Union
                              Patrick Roy

                              For the Employer
                              Keith Mullin

ADJUDICATOR:                  Brian D. Bruce, Q.C.

DATE OF HEARING:              April 28, 2008
                              Miramichi City, NB

DATE OF AWARD:                June 4, 2009




        AWARD RESPECTING PRELIMINARY OBJECTIONS
ISSUE

1.             This Award addresses two preliminary objections which were raised
by counsel for the Employer at the commencement of the adjudication hearing into a
grievance filed by the Grievor, René Pelletier, on November 24, 2005 claiming that
his position should be reclassified from Recreation & Culture Program Officer 2
(RCPO2) to a higher pay classification level.


2.             The primary objection raised by counsel for the Employer was that as
this is a classification grievance it must be dealt with through the appeal process set
out in Article 25.03 of the Collective Agreement. Article 25.03 states as follows:


       “25.03 Appeal of classification: An employee who feels that his/her position has
       been unfairly or incorrectly classified or reclassified, shall have the right to appeal
       such classification or reclassification as per the classification appeal process and
       related procedures as amended from time to time.”


3.             Counsel for the Employer argued that the Grievor, in processing his
request to be reclassified, had utilized the appeal process referred to in Article 25.03
which included an in-house Classification Committee, an Office of Human
Resources Committee (Bargaining Classification Committee) and a Classification
Appeal Board. The Classification Appeal Board concluded that under the Hay
Method there was no reason to change the rating that was provided to the Grievor’s
position by the Bargaining Classification Committee.


4.             As a secondary argument, counsel for the Employer claimed that the
grievance should have been filed as a policy grievance rather than an individual
grievance as the remedy sought would necessarily have application to all employees
classified as RCPO2s.
                                         -2-

EVIDENCE


5.             It was determined at the commencement of the adjudication hearing to
first hear evidence relating to the preliminary objections raised by the Employer.
The two witnesses called by counsel for the Employer to testify respecting the
preliminary objections were Antoinette Yaychuk, a Human Resource Advisor at the
relevant times for the Culture & Sport Secretariat, and, Donna Jones, a Human
Resource Consultant in the Office of Human Resources working in the area of
classification and compensation. The only witness called by counsel for the Union
was the Grievor, René Pelletier.


6.             The evidence disclosed that the Employer has a policy (AD-2301),
Exhibit 7, which sets out a classification review and appeal process. A classification
review can be requested by an employee who considers that his/her position, duties
and responsibilities have changed significantly. There are four steps in the
classification review process:


       (i)     The employee completes a position description questionnaire
       (PDQ) and submits it to his/her immediate supervisor as a request for
       classification review.


       (ii)    The supervisor reviews the PDQ and, if satisfied that it is
       accurate, approves it. The supervisor then forwards it to the
       departmental Human Resources Branch.


       (iii)   A departmental Human Resources Officer interviews the
       employee and supervisor to ensure there is a thorough understanding
       of aspects related to rating factors/benchmarks.
                                        -3-

       (iv)   Finally, the departmental Human Resources Officer analyzes
       the job content of the position in comparison to classification
       standards and presents the employee’s request and a classification
       recommendation to an Interdepartmental Classification Review
       Committee. If approved by the Review Committee, appropriate
       paperwork is completed to grant the reclassification.


7.            Under the appeal process set out in Policy AD-2301, an employee, if
denied a reclassification by the Classification Review Committee, may appeal that
decision to the Classification Appeal Board. The decision of the Classification
Appeal Board is stated in the policy as being final and binding on both the employee
and the employer.


8.            The evidence confirmed that the Grievor completed a PDQ as referred
to in the first step of the classification review process under Policy AD-2301. The
Grievor’s application then was processed through the remaining steps out in the
Policy as outlined above. There were some questions raised by the Grievor as to
some small variations that may have occurred early in the process but the evidence
does not suggest, nor has it been claimed by the Union, that any variation prejudiced
the processing of the Grievor’s application. There were no objections to any
inconsistencies at the time and any prejudice would have been cured, in any event,
in the hearing before the Classification Review Committee.


9.            After his reclassification request was denied by the Classification
Review Committee in a reply dated September 25, 2004, the Grievor sought an
appeal in the fall of 2004.
                                        -4-

10.           By letter dated May 5, 2005, the Appeal Board denied the Grievor a
hearing on the belief that his request was beyond the scope of what the Appeal
Board had jurisdiction to grant.


11.           Following subsequent discussions, it was determined that the Board
would hear his appeal. Prior to the appeal being heard, the Grievor filed the
grievance (Exhibit 3) on November 24, 2005 which has given rise to this
adjudication. The grievance was held in abeyance, however, while the Appeal Board
process continued. The appeal for reclassification was held before the Classification
Appeal Board on Wednesday, June 20, 2007. The Appeal Board concluded that it
“. . . found no reason to change the rating that was provided to this position by the
Bargaining Classification Committee.” The Board denied the appeal for
reclassification on June 20, 2007.


12.           Following the denial for reclassification by the Classification Appeal
Board, the grievance giving rise to this adjudication was brought forward.


ARGUMENT
Argument of the Employer


13.           Counsel for the Employer argued that Section 6 of both the Financial
Administration Act and the Public Service Labour Relations Act reserve to the
Employer the right to determine classification issues. It was argued that Article
25.03 of the Collective Agreement specifically refers to the classification appeal
process as established by the Employer in Policy AD-2301.


14.           Counsel for the Employer argued that the Classification Appeal Board,
as the final step, had denied the classification review request and that the grievance
                                                -5-

seeking reclassification could not now be referred to adjudication. Counsel for the
Employer referred to numerous cases addressing this and related issues.


15.            With respect to his second preliminary objection, counsel for the
Employer argued that individual grievors should not be able to seek a remedy which
would change the entire classification system. Such changes, it was argued, should
only result from policy grievances.


Argument of the Union


16.            Counsel for the Union argued that pursuant to Article 9.03 of the
Collective Agreement a grievance cannot “. . . be defeated by any formal or
technical objection and the Adjudicator shall have the power to waive procedural
irregularities in order to determine the real matter in dispute and to render a decision
according to the merits of the case.”


17.            Counsel for the Union argued that it is Article 25.02 rather than
Article 25.03 which, in effect, has been breached by the Employer. Article 25.02
states as follows:


       “25.02           If a new classification comes into being during the life of this
       agreement, or there is a significant change in the level of duties, responsibilities, or
       qualification requirements of an existing classification, the pay shall be determined
       relative to the points allocated to the classification in the evaluation process as
       agreed between the Employer and the Union. The Employer may set an interim
       wage rate for such classification.

                Within thirty (30) days of notification of such new wage rate, the Union
       shall either accept the rate established by the Employer or indicate its desire to
       negotiate a new rate. Should the Union fail to indicate its intention within the thirty
       (30) day limit the rate established by the Employer will remain in effect for the
       term of this agreement. Should the Union request negotiations of a wage rate and
       fail to reach agreement, the parties shall submit such wage rate only to binding
       arbitration under the Public Service Labour Relations Act.
                                            -6-

                The new wage rate shall become retroactive to the time the position was
       filled by an employee and all other conditions and terms of this agreement shall
       apply during this retroactive period and thereafter during the life of this
       agreement.”


With respect to the application of Article 25.03, counsel for the Union argued that
there is nothing specifically stated in Article 25.03 which rules out the right to use
the grievance processes in the Collective Agreement. Further, it was argued that the
Grievor, through his testimony, indicated that he wanted to go through the grievance
process based on the PDQ of 2004.


18.           With respect to whether the grievance should have been filed as a
policy grievance rather than an individual grievance, counsel for the Union noted
that the grievance was written for the individual Grievor. Whether the remedy
provided through adjudication applies simply to the Grievor or to a larger group of
employees with the same classification was not seen as relevant by the Union. It was
prepared to accept a determination simply with respect to the individual Grievor
and, if successful at the individual level it would speak to the Employer about the
possibility of expanding the Award’s application.


19.           In support of his argument, counsel for the Union referred to the
adjudication decision Stone v. New Brunswick (Department of Training and
Employment Development) [2002] N.B.L.A.A. No. 18 (Bruce).


DECISION


20.           The issue to be determined, as noted earlier, is whether as Adjudicator
I have the jurisdiction to address the issue raised in the grievance. The grievance
states as follows:
                                             -7-

       “I claim that my classification of Recreation & Culture Program Officer II has not
       been allocated the appropriate points for the know how, the problem solving,
       accountability, working conditions, duties and responsibilities.”


As a remedy, the Grievor requests:


       “That I receive an increase in pay relative to the proper points allocated to my
       classification.”


21.            The grievance clearly is requesting a reclassification to the higher pay
band of an existing classification in the Collective Agreement. In his “Appeal for
Classification” (Exhibit 17) the Grievor indicated that he was seeking to be
reclassified to the RCPO3 classification which is an existing classification in the
Collective Agreement. All of the processes to date that have been followed fit within
the scope of Article 25.03 of the Collective Agreement.


22.            As noted earlier, Counsel for the Union argued that it was Article
25.02 of the Collective Agreement which has been breached. Article 25.02 addresses
the situation where there is an entirely new classification brought into existence by
the Employer or there is a significant change in duties, responsibilities or
qualification requirements of an existing classification. When this happens a pay rate
must be assigned to the position. This pay rate may initially be set by the Employer
using the evaluation process agreed upon by the parties. If the Union does not accept
the rate established by the Employer it must say so within thirty days or the rate
established by the Employer will remain in effect for the term of the Agreement. If
the Union challenges the rate established by the Employer and the parties fail to
negotiate a mutually agreed upon rate, then the determination of the wage rate can
be referred to binding arbitration under the Public Service Labour Relations Act.


23.            It is clear from the facts that the Union is not claiming that a new
classification has been created. When Article 25.02 makes reference to a new
classification coming into existence during the life of the Collective Agreement it is
                                         -8-

referring to a situation where the Employer has acknowledged or declared the new
classification and the only issue to be determined is the appropriate rate of pay for
the new classification. That situation does not exist in the present case. Similarly,
whether there has been a “…significant change in the level of duties,
responsibilities, or qualification requirements of an existing classification” pursuant
to Article 25.02 implies that the Employer has provided notice of the change in
duties and is prepared to address the wage rate issue.


24.            In this particular case, there are three classification levels within the
RCPO series. The Grievor is at Level 2 in the RCPO classification series. In this
situation, the obvious issue is whether the Grievor is performing the duties of the
RCPO2 or whether his duties more closely resemble those of the RCPO3. There is
no suggestion in the PDQ filed by the Grievor that he is in any way suggesting that
the duties of his position have changed such that he no longer fits within the RCPO
group of classifications or that it should be found that a new classification level
between the RCPO2 and 3 has been created. The existing RCPO classification series
is one that has been agreed upon by the parties in the Collective Agreement and the
pay distinction in these three levels has been established.


25.           Further, under Article 25.02, it is the Union which must make the
decision to either accept the rate established by the Employer or seek to negotiate a
new rate. Article 25.02 is clearly focused on the establishment of a rate of pay for a
new classification or for an existing classification where there has been a significant
change in the duties, responsibilities or qualification requirements of that existing
classification. That judgment has to be made from the perspective of all of the
employees in the classification and not just one employee. For this reason, the
Employer is correct in saying that it must be raised in a union or group grievance.
Although an adjudicator now appears to have the discretion to over-ride any
technical objections, such that in the present case the grievance could be treated as a
                                                -9-

union grievance if that is the substantive nature of the grievance, as already noted,
that is not the nature of the present grievance and not the manner in which the issue
has been addressed to date.


26.            Article 25.03 of the Collective Agreement provides as follows:


       “25.03 Appeal of classification: An employee who feels that his/her position has
       been unfairly or incorrectly classified or reclassified, shall have the right to appeal
       such classification or reclassification as per the classification appeal process and
       related procedures as amended from time to time.”


Article 25.03 must be seen as more directly related to the circumstances of the
present grievance. Article 25.03 specifically refers to the “classification appeal
process and related procedures”. This reference must clearly be seen to be referring
to Policy AD-2301 under which the Grievor applied for a classification review. The
Grievor was unsuccessful in his classification review and exhausted the appeal
process within that policy.


27.            Counsel for the Union argued that the Grievor, having exhausted the
appeal process under the policy, should now be able to file a grievance under the
Collective Agreement. The classification appeal under Article 25.03, however, must
be seen as restricting a reclassification appeal to the classification appeal process as
established by the Employer in its policy. Section 6 of the Financial Administration
Act clearly states that the Employer has the power to provide for the classification of
employees in the public service. Section 6 of the Public Service Labour Relations
Act states that there is nothing in the Act which can be seen to affect the right of the
Employer to assign duties and classify positions. This right of the Employer to
classify positions must be seen as subject to the right of an employee to seek a
classification review as provided for in Policy AD-2301.
                                         - 10 -

28.           If the Employer specifically agrees in a collective agreement to the
arbitral review of classifications, neither the Financial Administration Act nor the
Public Service Labour Relations Act can be seen as preventing an adjudicator from
hearing the grievance. For example, section 6 of the Financial Administration Act
also refers to the power of the Employer to establish pay rates for employees. This is
done through the collective bargaining process and the pay rates are set out in the
collective agreement. In a similar manner, the Employer can agree to appeal
processes through adjudication in a collective agreement relating to classifications.
(See Stone v. New Brunswick (Department of Training and Employment
Development, [supra] at paragraph 16).


29.           In the present case, however, the wording of Article 25.03 cannot be
seen to provide for arbitral review of requests for reclassification under the
grievance process set up in the Collective Agreement. Rather, it states that the
appeal must be pursuant to the classification appeal process. This appeal process
must be seen as the one established by the Employer in Policy AD-2301. The
Grievor was given access to this appeal process and there has been no argument
made that the Employer has acted in bad faith or denied the Grievor access to the
full range of appeals set out therein. Having specifically identified an appeal process
for reclassification in Article 25.03, it must be seen to override any right of an
employee to challenge the merits of the reclassification decision through the
grievance process in the Collective Agreement.


30.           The fact that the Union was unable to provide any cases in which
adjudicators have reviewed decisions relating to reclassification under the provisions
of this Collective Agreement supports a finding that it was not the intention of the
parties to provide for the adjudication of requests for reclassification. Counsel for
the Employer referred to several arbitration and adjudication decisions in which the
applicable collective agreement referred to a specific review process for
                                             - 11 -

reclassification requests. In such cases, it was concluded that the parties did not
intend for there to be any further reviews through the grievance process in the
collective agreement. In Eileen Levenshulme (unreported decision by Adjudicator
Raymond Gorman dated May 6, 1992), the adjudicator in paragraph 35 concluded as
follows:


       “The jurisdiction to deal with the classification matters is set out in the
       classification review process and adjudication under the Public Service Labour
       Relations Act is not a remedy afforded to an aggrieved employee under that
       process. I am in agreement, therefore, that an adjudicator under the Public Service
       Labour Relations Act does not have the jurisdiction to hear and determine
       classification issues. The matter before me is merely a classification issue and as
       such is not within my jurisdiction. Because of the aforegoing the grievance is
       dismissed.”


CONCLUSION


31.            For all of the above reasons, it is determined that as Adjudicator I do
not have the jurisdiction to hear the grievance submitted to me for resolution.


               DATED this 4th day of June 2009.




                                                            Brian D. Bruce, Q.C.
                                                                Adjudicator
                               APPENDIX “A”


              List of Exhibits Submitted at Adjudication Hearing
                               on April 28, 2009



 1   Collective Agreement between Board of Management and Canadian Union of
     Public Employees, Local 1418 (Expiry Date: August 15, 2004)

 2   Collective Agreement between Board of Management and Canadian Union of
     Public Employees, Local 1418 (Expiry Date: August 15, 2009)

 3   Grievance of René Pelletier dated November 24, 2005

 4   Letter dated December 2, 2005 to René Pelletier from Roger Duval –
     Employer’s Reply to Grievance at Level 1

 5   Letter dated December 12, 2005 to René Pelletier from Suzanne Mason -
     Employer’s Reply to Grievance at Level 2

 6   Letter dated December 22, 2005 to René Pelletier from Sylvie Levesque-Finn
     – Employer’s Reply to Grievance at Level 3

 7   Policy AD-2301 – Policy on Classification Review and Appeal

 8   Documents presented to Classification Appeal Board on June 20, 2007

 9   Decision of Classification Appeal Board

10   Classification Specifications for RCPO1

11   Bargaining Classification Committee

12   Classification Specifications for RCPO3

13   Memorandum dated October 25, 2004 to Sylvie Levesque-Finn from
     Antoinette Yaychuk

14   Brochure on the Hay Method

15   Letter dated May 5, 2005 to René Pelletier from Wilfred Savoie,
     Classification Appeal Board
                                       ii


16   Position Description Questionnaire for René Pelletier dated July 16, 2004

17   Appeal for Classification Review from René Pelletier

18   Supporting Documentation for 2005 Appeal Board

19   Additional Documentation used at 2005 Appeal Board

20   Letter dated October 24, 2005 to Roger Duval from René Pelletier appealing
     decision of Bargaining Classification Committee

21   Government Position Evaluation Manual

22   Appeal Presentation on the Classification Review of RCPO2 in June 2007

								
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