FPSLREB Decisions
Decision Information
Jurisdiction - Effective date of reclassification - Section 7 of the Public Service Staff Relations Act - Acting pay - Group grievance - grievors' positions had been reclassified to a higher level effective April 29, 1994 and they received acting pay at the higher level from February 14, 1994 to the effective date of reclassification - grievors sought payment at the higher level retroactive to April 1, 1992 - evidence established that the reclassification process had taken a considerable period of time and that their supervisor had advised them on more than one occasion that they would be paid at the higher level from April 1, 1992 - adjudicator determined that he had jurisdiction to entertain this grievance as it related to pay rather than to classification as alleged by the employer - adjudicator was not satisfied on the evidence that the grievors had substantially performed the duties of the higher level prior to February 14, 1994 - the employer was not estopped from refusing to pay the grievors at the higher level prior to February 14, 1994, because there had been no detrimental reliance by the grievors on the supervisor's assurances. Grievance denied. Cases cited: Costain (166-2-18508 to 18511); Kos (166-2-25536); Stagg v. Canada (Treasury Board) (1993), 71 F.T.R. 307; Blais v. The Queen (F.C.A. Court file A84685); The Queen (National Film Board) v. Coallier et al. (F.C.A. Court file A40583).
Decision Content
File: 166-2-26033 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN DERYLE TURNER ET AL Grievors and TREASURY BOARD (National Defence)
Employer Before: J. Barry Turner, Board Member For the Grievors: David Landry, Public Service Alliance of Canada For the Employer: André Garneau, Counsel Heard at Victoria, British Columbia, February 6, 7 and 8, 1996.
Decision Page 1 DECISION Deryle Turner, a Tool Crib Attendant (TCA), (Ship Repair Unit (SRU), Pacific, GS-STS-4 classification level, Department of National Defence, CFB Esquimalt, British Colombia is grieving an effective date of duties for new SR-ELE-02-H positions assigned to him and his colleagues. Mr. Turner and 14 other employees submitted a group grievance at the first level of the grievance procedure on June 30, 1993. The parties agreed that this decision would apply to the following persons: Deryle Turner John Croft Jim Asher Don Laird Keith Baker John Murray Rick Jackson Keith Grainger Howard Logan Larry Westman Graham White Ralph Adye Ray Beveridge Herb Leason Don Dwinnell
It was also agreed that, at the time the grievance was submitted in June 1993, the grievors were represented by the Public Service Alliance of Canada (PSAC), and therefore were subject to the Master Agreement between the Treasury Board and the PSAC signed May 17, 1989. Although not of any material importance, the grievors joined a new bargaining unit in May 1994, the Federal Government Dockyard Trades and Labour Council (Esquimalt).
The grievance reads: We grieve the effective date of duties "17 June 1993" on new SR ELE 02-H Position Analysis Schedule (P.A.S.) for tradesman/tool crib operator.
The grievors are requesting the following corrective action: 1) We request that the effective date of duties be changed from 17 June 1993 to 1 April 1992.
2) We request any pay difference be retroactive to 1 April 1992, as promised by management.
3) We request UNDE, PSAC, and/or legal representation at all levels.
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Decision Page 2 Mr. Landry argued that this case is in reference to the interpretation and application in relation to the grievors of Article M-27, Pay Administration, of the Master Agreement between the Public Service Alliance of Canada and the Treasury Board. Mr. Garneau argued that, on the face of the grievance, the issue is one of reclassification and therefore not adjudicable under section 7 of the Public Service Staff Relations Act (PSSRA). Section 7 reads:
7. Nothing in this Act shall be construed to affect the right or authority of the employer to determine the organization of the Public Service and to assign duties to and classify positions therein.
The hearing lasted three days with seven witnesses testifying and twenty exhibits submitted into evidence.
Summary of Evidence 1. Deryle Turner worked for the Defence Department as a Tool Crib Attendant (TCA) at the GS-STS-4 level. He became a Trades Helper (TH) or Expediter SR-ELE-2 level after a reorganization. He received acting pay at the SR-ELE-2 level from February 14, 1994 to April 29, 1994 (Exhibit G-1). After April 29, 1994 he was classified and paid at the SR-ELE-02 rate. Prior to February 14, 1994 he was paid at the GS-STS-4 level from June 1, 1993, a lower rate of pay.
He testified that he received the Position Analysis Schedule (PAS) (Exhibit G-2) around June 14 or 15, 1993, and that he signed it on June 16, 1993, as an accurate reflection of his duties. He said that before April 1, 1992 his duties entailed supplying tools to trades personnel, calibrating equipment, and controlling tool stocks. His immediate supervisor was one of three GS-STS-6's. He first learned from an August 1991 memorandum that there was going to be a reorganization of TCA's in shop 78 (Exhibit G-3), from the Industrial Engineer section, to the Services Manager section. He said this reorganization took place around September 1991 as shown on the new organizational chart (Exhibit G-4). His duties did not change at all with this "paper move" that became effective as of 800 hours 23 September, 1991 (Exhibit G-5). At this time there were still three GS-STS-6's. His shop 78 reported through a GS-STS- 6 to the Demand Receipt Group (DRG) managed by Elaine Rush and to the Services Public Service Staff Relations Board
Decision Page 3 Manager, Joe Blogg. Mr. Turner said that shop 42, the Trades Helpers or Expediters were all classified at the SR-ELE-02 level. He testified that he believed that it was March 1992 when he first heard that he too would be moving to the SR-ELE-02 wage level.
Mr. Turner identified a National Defence form 2302 (Exhibit G-6) that he was required to fill out before April 1, 1992. These forms were collected, reviewed and signed as "originated" by one of the three GS-STS-06's. After April 1, 1992 two GS-STS- 06's retired, leaving only one, Mr. Herb Leason. Mr. Turner said that, because there now was only one supervisor for ten or eleven tool cribs, he took on the responsibility of talking to base supply if there were problems with a 2302 form whereas before April 1, 1992 this was done by a supervisor. He described this as "a major change of duty that was more efficient". He also said that he started to do his own inventory surveys of what went where and he would initiate a loss report if something was missing. Both of these duties had not been performed by him before April 1, 1992. After April 1, 1992 he also went to the customer account office for a variety of reasons: this was another new duty for him even though that office was "only a two minute walk from my building". He added that after April 1, 1992 he also began to research outside suppliers in catalogues, order equipment as per a SRU Matex Special form (Exhibit G-7) and sign for it when it arrived. He also began to fill out Ship Repair Material Expenditure Vouchers (Exhibit G-8) something he had not done before April 1, 1992.
Mr. Turner, the shop steward at the time, testified that at a meeting in May 1992 to diffuse some hard feelings between the Trades Helpers/Expediters and the TCA's who were being paid less than the Expediters for doing "more or less the same work", one of his colleagues, Mr. Grainger (who is also one of the grievors), asked Mr. Blogg, Services Manager, when the TCA's were going "to get the big bucks" to which Mr. Blogg replied "April 1, 1992 but we will try to go back as far as September 23, 1991". The witness said this response made everyone "quite enthusiastic".
He said that at a second meeting with the Expediters, TCA's, Mr. Blogg and Ms. Rush in August 1992, Mr. Grainger again asked when the TCA's were going to be
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Decision Page 4 paid at the same wage level as the Expediters to which Mr. Blogg responded "April 1, 1992 but probably not back to September, 1991".
At a third meeting in October 1992 called by Mr. Blogg with the union local president, Mrs. Williams, the TCA's, Supervisor Giles, and Ms. Rush, Mr. Blogg told them the new Position Analysis Schedule (PAS) for their new group and level had been approved by CFB Esquimalt but it needed approval from Headquarters in Ottawa and Treasury Board but that retroactive pay would be back to April 1, 1992.
At a fourth meeting in February 1993, called by management with the same participants as the third meeting, Mr. Turner said they were informed by Mr. Blogg that the PAS would only have an effective date of duties as of January 22, 1993 and not April 1, 1992, as per Exhibit G-9. He described this as a bombshell meeting.
At a fifth meeting on March 15, 1993 with the TCA's, the Expediters, Ms. Rush, Mr. Blogg, the chief shop steward and the bargaining unit's Regional Vice-President, they were all given a PAS to sign with the effective date of duties January 22, 1993. Mr. Turner said they refused to sign since they felt the PAS did not properly reflect the duties that they were performing. He said that from the PAS (Exhibit G-9) to the signed PAS (Exhibit G-2) there were changes made to the job duties section. He cited additions to Exhibit G-2 as 2 a. (6), (8) and 2 b. (3), (5), (6), (7) on page 2/6 under Job Duties.
When asked by his representative if he mixed paint now under job duty 2 b. (5), Mr. Turner responded: "No". He added that he also performed duties under 2 b. (3), (6) and (7).
Mr. Turner testified that in April 1993 they were still concerned about the effective date of duties and filed a grievance, reference no 93-F-ESQ-049 (Exhibit G-10), but were told in the first level reply that the PAS they were grieving was only a proposed one. The grievance was denied (Exhibit G-11). He said that as late as June 4 and 15 they were still discussing changes to the PAS that most employees signed on June 16, 1993 with the effective date of duties now specified as June 17, 1993 (Exhibit G-2). He said they grieved the matter that is now before me on June 30, 1993.
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Decision Page 5 He identified an old job description for himself (Exhibit G-12), another PAS the same as Exhibit G-2 but with no effective date of duties date on it (Exhibit G-13), and an administrative extract 7.01 for the Delegation of Signing Authority SRU (P) (Exhibit G-14) that demonstrates a Group Manager, such as Mr. Blogg or the Industrial Engineer, could approve acting pay for Mr. Turner and his colleagues.
During cross-examination, Mr. Turner agreed that the job duties he is performing now are those described on the PAS with effective date of duties June 17, 1993 (Exhibit G-2), and that he got acting pay at the SR-ELE-02 level from February 14, 1994. He did not believe that he or anyone else got acting pay during a period of training in June of 1993. Mr. Turner agreed that the job duties listed at number 2 a. on page 2/6 of Exhibit G-2 relate primarily to TCA's from the GS Group, and number 2 b. job duties relate to trades helper personnel from the SR Group. He testified that he and his fellow employees performed the duties in 2 b. before June 17, 1993; for example, he did go to worksites as described in 2 b. (1), and they performed some of the tasks described in (4), (5) and (6). He added that "I had to keep the tool crib open before April 1992 and this is still my position today". He said that he did not climb ladders but some TCA's did when they went to worksites. He added that they generally did not go on board ships but, if the tradesmen were doing work in the workshop, the TCA's would help them. He likened helping them in this way to being a shop keeper.
Mr. Turner reiterated that at the May 1992 meeting Mr. Blogg did not say "he would try" to work towards an April 1, 1992 date for their new duties to be effective, but said it "would be" April 1, 1992 for sure, nor did Mr. Blogg ever say he would "endeavour to achieve" this date at any subsequent meetings. The witness said again that he did additional ship repair paperwork because they were short two supervisors after April 1, 1992. He concluded that his duties today under the new PAS are the same as they have been since April 1992 but that he was not properly paid for these duties.
During re-examination, Mr. Turner said that no new STS-6's have been hired and that from June 1993 until February 1994 he received no special training.
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Decision Page 6 2. Margaret Williams worked with the Department of National Defence for twenty years before retiring in June 1995. From 1992/93 she was the President of the Union of National Defence Employers (UNDE), Local 1006, that included TCA's.
She testified, while consulting her detailed notes taken at the time, that at a first meeting on August 20, 1992 between herself, Deryle Turner, TCA's, Mr. Blogg and Ms. Rush to discuss the PAS job duties, Mr. Blogg said their back pay would be retroactive to April 1, 1992 or possibly September 23, 1991. At a second meeting on October 8, 1992 with the same group of persons to get an update on the status of their job situation, Mr. Blogg again said their back pay would be retroactive to April 1, 1992 and that he did not know how long the process would take. At a third meeting on February 1, 1993 between herself, Mr. Turner, the TCA's, Mr. Blogg and Ms. Sandy Rix they were told by Mr. Blogg that the effective date of duties would not be April 1, 1992 but January 22, 1993 and that this date was "set in stone". She said the TCA's became extremely angry and upset. After the meeting she explained to the TCA's that reclassification took a long time because there was so much involved and that they may have a grievable situation. She added that on February 1, 1993 they did not have a PAS before them and she advised the employees that she would try to find out why this new date had been given to them. She said within a day or two of the February 1 meeting she spoke with Mr. Blogg who told her that he was directed to use January 22, 1993 by Headquarters. She "took him at his word because he always dealt openly with his local".
At the next meeting called by management for March 15, 1993 attended by the bargaining unit's regional vice-president, Mr. Blogg distributed the new PAS with the effective date of duties January 22, 1993. Ms. Williams said she told the TCA's not to sign it until they had a chance to review the accuracy of the duties. She was not happy with the effective date of January 22. Subsequently on April 7, 1993 at a meeting with Mr. Blogg, Ms. Rush, Ms. Rix, Mr. Turner and herself, Ms. Williams asked to have some duties added to the PAS but contrary to Mr. Blogg's earlier promise, they were told the effective date of duties would not be changed.
After discussing the situation with the TCA's, a grievance was filed on April 28, 1993 (Exhibit G-10). On May 20, 1993, Ms. Williams was shown by Mr. Turner a first level response to the grievance written by Ms. Rush (Exhibit G-15) that had some
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Decision Page 7 errors in it, one of which was that the effective date of duties should have been indicated on the PAS whereas the first level response (Exhibit G-15) read the effective date should not have been indicated. Ms. Williams re-confirmed this with a classification officer Tom Egan on the phone on May 21 around 1030 hours. At a meeting on May 21 between Sandy Rix, Joe Blogg, Elaine Rush and herself, Ms. Williams advised Ms. Rush about these errors who then did not send out her response to all affected parties.
Ms. Rush also advised Ms. Williams that the PAS (Exhibit G-9) was only a proposal and it could therefore not be grieved. Ms. Williams and the TCA's did not consider it a proposal and grieved in order to be within the twenty-five day limit to make their grievance timely. The symbol H on Exhibit G-9 that reads SR-ELE-02-H indicates a proposal. Ms. Williams said that at the May 21 meeting, Mr. Blogg said that he had to use the date of January 22, 1993 because the TCA's had not been performing all duties of the SR-ELE-02 level before then.
The witness added that Mr. Blogg told her he had been referring to the April 1, 1992 date because he was willing to use that date "to keep harmony". He said this in front of Ms. Rix and Ms. Rush.
Ms. Williams said that the first level response to their grievance was redone and received by her on May 27, 1993 (Exhibit G-11). She added that the second grievance was filed on June 30, 1993 after the PAS with effective date of duties June 17, 1993 (Exhibit G-2) was received. When the second grievance was filed the TCA's were being paid at GS-STS levels and not at SR-ELE levels.
During cross-examination, Ms. Williams said that the first PAS presented to her during this entire process had January 22, 1993 as the effective date of duties on it, that is Exhibit G-9. Exhibit G-13, a PAS, had no date on it and the PAS, Exhibit G-2, dated June 17, 1993, was ultimately signed by most TCA's. She said that not all TCA's climbed ladders as per job duties described on Exhibit G-2 page 2/6, item b. (4), and not all TCA's delivered tools as per item b. (3) particularly since the tool cribs were spread out over a large working area. She added that, if they had signed Exhibit G-9 dated January 22, 1993, even though it was a proposal, management would have accepted it. As it was, Exhibit G-9 was changed. She could not say with any degree of accuracy if the duties on the old PAS for the position of Tool Crib Attendant, Public Service Staff Relations Board
Decision Page 8 GS-STS-04 (Exhibit G-12) were the same as those on the new PAS for the position of Trades Helper, SR-ELE-02 (Exhibit G-2).
Ms. Williams reiterated that even though there was no new PAS before them at the August 20, 1992 meeting, the TCA's felt that they were doing the ELE (i.e. Trades Helper or Expediter) duties as of April 1, 1992. She added that Mr. Blogg led her to believe that he had done the background work with regional personnel to put in place the TCA's effective date of duties as April 1, 1992 and that he had "the best interests of his men at heart all along but headquarters said otherwise".
During re-examination, Ms. Williams said that the reclassification process was really backed up because the whole department was being affected.
3. Howard Logan, a retired TCA, testified that at two meetings with Mr. Blogg, one in May 1992 and another in October 1992, Mr. Blogg referred to an effective date of duties for the new positions as April 1, 1992. He said the TCA's wanted the effective date to be September 23, 1991 when the reorganization all began (Exhibit G-5).
4. Sandy Rix has been at CFB Esquimalt for eight years. In 1993 she was the Chief Shop Steward for Local 1006. She testified that at a meeting on February 1, 1993, when Mr. Blogg said the proposed PAS would use January 22, 1993 as the effective date of duties, there was yelling and shock in the room. She said he said he was sorry and sincere and had done his very best but that this date was "set in stone". At the March 15, 1993 meeting the PAS with an effective date of January 22, 1993 was handed out and the TCA's were asked to sign it. They did not. At the next meeting on April 7, 1993, the TCA's wanted to add some duties to the PAS. Ms. Rix corroborated Ms. Williams' evidence about the events surrounding May 20-21, 1993 regarding the first level response to their grievance. She added that there had not even been a hearing before the response was written. She confirmed that Mr. Blogg said during the May 21, 1993 meeting that he used the April 1, 1992 date "to keep harmony". She in fact read this from her shorthand notes of the meeting and added that Ms. Williams asked Mr. Blogg why he would have done this in a time of constraint. She added that the difference in pay between an STS position and an ELE position is about five dollars per hour.
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Decision Page 9 During cross-examination, Ms. Rix said she never heard Mr. Blogg say the effective date of reclassification would be April 1, 1992, but she said it was a safe assumption that he did because of how he apologized at the February 1, 1993 meeting she attended.
5. Elaine Rush, the Shop Manager for the Demand Receipt Group (DRG) that includes the Expediters/Trades Helpers, shop 42, and the Tool Crib Attendants, shop 78, said the Voucher Control Unit (VCU) processed paperwork for the TCA's after April 1, 1992. She said in September 1991 the TCA's were put under her supervision to make more productive use of this group and to allow for more flexibility in their workplace because of downsizing and reorganization. The TCA's "could do more chores as Expediters" in her words.
Ms. Rush identified her first level grievance reply (Exhibit E-1) to the grievance that is before me. She pointed out that the use of the MATEX paper system is not recognized by Base Supply and added that, even though they had fewer supervisors to check paperwork, this remained a function for Mr. Turner and TCA's as described on their STS job duties in Exhibit G-12 under section c. (2), (3), (5), and (6), requiring them to fill out forms even though there is no MATEX mentioned in Exhibit G-12.
Ms. Rush added that she referred to "personal preference" in Exhibit E-1, page 2/3, paragraph 8, since Mr. Turner told her he delivered an item once. She said Supervisor Giles told her that the delivery of tools and material did not happen very often.
Regarding the various meetings that took place Ms. Rush said that she did not remember all of them and did not take notes at any of them since she felt she was just an observer and not a full participant. She could not recall Mr. Blogg ever saying April 1, 1992 was a firm or guaranteed date for reclassification, but he said that he would try to do his best at the so-called bombshell meeting on February 1, 1993. She remembered a March meeting when the PAS was passed out and TCA's wanted time to read it and make changes. Mr. Blogg agreed. She could not remember Mr. Blogg saying at the May 21, 1993 meeting that he chose April 1, 1992 "to keep harmony". She testified that the aim of the job duties on page 2/6 of Exhibit G-2 "was to get the TCA's to help the tradesmen but they did not perform all of the duties in part b. of Exhibit G-2. Public Service Staff Relations Board
Decision Page 10 Ms. Rush said that cross-training began for the reorganized employees on June 23, 1993 but was not completed.
During cross-examination, Ms. Rush said that the cross-training exercise experienced some "summer reluctance in June 1993 and just petered out as a result". She said that Mr. Turner could now assist a trade's helper if he found someone to replace him in his tool crib. She added that most expediters do not go on board ship to help tradesmen but work with them in the shop area. She was aware of the role of TCA's because she worked as a Trade's Helper in 1990 in the weapons building.
Ms. Rush said that the two forms, Exhibits G-7 and G-8, are part of an accounting procedure for items needed for procurement. She initiated the MATEX special, Exhibit G-7, and was aware of what the CF 2302 forms are for (Exhibit G-6).
Regarding the various meetings that have been referred to, when asked by Mr. Landry if she thought some witnesses had lied in their testimony regarding what Mr. Blogg had promised, she responded: "I can not say yes or no; I do not recollect Mr. Blogg making any commitment to April 1, 1992". She did however recall that the "bone of contention" at the February 1, 1993 bombshell meeting when the TCA's were angry was the date of April 1, 1992. She said Mr. Blogg said he was sorry and had tried his best but had been directed by DND HQ to set January 22, 1993 as the effective date of duties. She could not recall if Mr. Blogg ever told the TCA's that they were not doing the full range of duties as ELE-2's. Ms. Rush agreed that the PAS (Exhibit G-9) that was given to TCA's in March 1993 was to be the official job description even though they asked for more time to review it.
Ms. Rush could not recall Mr. Blogg saying at the meeting on May 21, 1993 that he was willing to use the April 1, 1992 date to keep harmony, nor could she recall if he ever said there was not much difference between the STS and the ELE job descriptions. She reiterated the purpose of integrating the two positions was to give the employer more flexibility but added she did not know who originated the idea. She agreed in reference to Exhibit G-2 that the duties on page 2/6 b. were essentially for Expediters but had never really wondered about these various classifications. She could not recollect ever asking Mr. Turner to perform a duty under 2/6 b. since the shop floor personnel did this. She added that neither the TCA's nor the ELE's go to a ship in the morning to wait for work with a tradesman; for example, paint is mixed in Public Service Staff Relations Board
Decision Page 11 the paint shop by an Expediter. She said she would find a replacement TCA if he had to go off to a work site, or was ill or on leave. She added that regarding job duties in Exhibit G-2 page 2/6 b. both TCA's and Expediters perform these duties but the flow of tools is primary for TCA's. She noted that one TCA, Keith McKnight, performs a lot of work for painters and sand blasters under duties listed on page 2/6 b.
Ms. Rush testified that as of March, 1992 the TCA's began to fill out more forms and do some research to order replacement tools especially since two supervisors left in March who normally did this work.
She added that she did not really know who selected the date June 17, 1993 on Exhibit G-2 that she referred to in her first level response (Exhibit E-1); she was not guaranteeing this date but only referring to it.
6. Joe Blogg, Services Manager, testified that after the proposed reorganization (Exhibit G-4) went into effect he was told to merge shops 42 and 78 to save money and administration costs and create more flexibility for the employer. Supervisors who left as a result were not to be replaced. He started the process of reclassification in the fall of 1991 and informed the employees accordingly. He has no record of dates of meetings but said he can remember them in general. At the August 20, 1992 meeting he recalled telling the TCA's that he was not in a position to guarantee anything but he would do his best. He remarked that even the base commander could not guarantee anything. He said the TCA's expressed a general feeling that they should be paid back to September, 1991 when the reorganization took place and the date April 1, 1992 was mentioned. When asked if he made a commitment to April 1, 1992, Mr. Blogg replied: "Not to my knowledge. I was not in a position to do that".
Mr. Blogg testified that at the second meeting on October 8, 1992 he again did not make any guarantee to get back pay set for April 1, 1992. He remembered the short February 1, 1993 so-called bombshell meeting when the TCA's were first informed that the effective date of duties would be January 22, 1993. He said Maritime Command set this date. He said that not even January 22, 1993 was a guaranteed date because there still had to be discussion with the classification section and a determination as to when the full range of duties on the PAS was actually being performed. The PAS on February 1, 1993 according to Mr. Blogg was still a draft proposal. Public Service Staff Relations Board
Decision Page 12 During cross-examination, Mr. Blogg remembered Mr. Grainger asking him at some meetings "when are the big bucks coming". He recalled that he responded by not guaranteeing anything, nor did he say April 1, 1992. Mr. Blogg could also not recall that he guaranteed April 1, 1992 to Ms. Williams at the August 20, 1992 meeting. At the February 1, 1993 meeting Mr. Blogg recalled saying he had tried his best for the TCA's and that he was sorry because "people had expectations". He could not recall saying anything about the TCA's not performing the full range of duties for the ELE positions. Mr. Blogg said that at a March meeting he could not recall if he asked the TCA's to sign the proposed PAS (Exhibit G-9) if they were satisfied with it. He admitted that he had written Exhibit G-9 and signed it on March 11, 1993.
At the May 21, 1993 meeting with Ms. Rix, Ms. Rush, and Ms. Williams, Mr. Blogg recalled Ms. Williams asking him some questions but he did not recall saying in relation to the April 1, 1992 date that he chose this date to keep harmony. When confronted by the fact that Ms. Rix had read from her short-hand notes and when asked if he was alleging that she was therefore lying during this hearing, Mr. Blogg responded in a subdued and hesitant fashion that he did not believe he was wrong. He did recall saying there was not much difference between some of the duties of the old job descriptions for the TCA's and the new job descriptions for the ELE's, but he did not have second thoughts about the amalgamation.
Mr. Blogg agreed that he wrote Exhibit G-2 but had no involvement in the first level grievance response written by Ms. Rush (Exhibit E-1).
During re-examination, Mr. Blogg said that he believed he presented Exhibit G-9, the January 22, 1993 PAS, as a draft. Between April 1, 1992 and June 17, 1993, Mr. Blogg said that the duties described in the PAS Exhibit G-9 page 2/3 b. were never assigned to the TCA's. They were to work under their current job description at the time.
7. Tom Egan, a senior classification officer with DND in British Colombia at the relevant time, said he first heard about the reclassification sometime in 1992 when Mr. Blogg approached him for advice regarding the merger of TCA's and Expediters/Trades Helpers. He said he told Mr. Blogg that the new classification could not be implemented until the reorganization was completed by Maritime Command in Halifax. He said he advised both unions, that is PSAC and the Federal Government Public Service Staff Relations Board
Decision Page 13 Dockyard Trades and Labour Council, that such a classification decision would have to go to headquarters and Treasury Board because of the change from one bargaining agent to another based on new duties under the revised PAS. He also said he told Mr. Blogg there were high financial costs involved.
Mr. Egan testified that on June 2, 1993 he spoke to Mr. Blogg on the phone regarding the unsigned PAS; Mr. Blogg told him that the workers were concerned about the effective date of duties and wanted it backdated over a year but that they had not yet started doing all the new duties. He met on June 3, 1993 with Mr. Blogg and Ms. Rush to discuss the issue.
Mr. Egan said that "the effective date is the date the duties are assigned and fully performed by the employees".
He added that as far as he knew cross-training for all affected employees was going to begin on June 17, 1993 after which they would be performing all duties. He received the signed PAS (Exhibit G-2) on June 22, 1993 for classification. He said that he wrote HQ regarding the reclassification while outlining the financial implications and noting that the unions did not object as far as the collective bargaining implications were concerned. On September 8, 1993 Mr. Egan was advised that the Treasury Board required additional information. He said Mr. Blogg was to provide an internal study but that Mr. Blogg told him on October 4, 1993 that he would hold this information pending a study by Maritime Command. Mr. Egan said he was informed on January 26, 1994 that funds had been obtained for the reclassification.
Mr. Egan said that he does not get involved in money matters; he is only concerned with what the job duties are, when they are assigned, and when they are performed. He identified a letter from HQ classification saying Treasury Board had agreed to proceed with the reclassification (Exhibit E-2) and a memorandum from the Commander in Victoria indicating the effective date of duties would be February 14, 1994. He then reclassified the positions on March 3, 1994.
The witness said he got a note regarding cross-training on February 3, 1994 from a Cheryl Hoard that referred to a phone call to her from Joe Blogg saying cross-training took place for three weeks in June 1993, but since no monies had been allocated the new duties had not yet begun. She had suggested term funding.
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Decision Page 14 Mr. Egan was not consulted regarding the writing of the first level response Exhibit E-1 dated July 14, 1993, even though Ms. Williams called him about this matter on May 21, 1993. He was asked on May 31, 1994 for his advice on the job duties claimed to have been performed as of April 1, 1992 under the new ELE 2 classification to which he responded on June 1, 1994 (Exhibit E-4).
Mr. Landry objected saying this approach amounts to back door reclassification. Mr. Garneau argued this was the crux of the grievance. I allowed Exhibit E-4 to be submitted into evidence and further questioning.
Mr. Egan answered that Mr. Black from Staff Relations, Victoria, asked him to look at Exhibit E-1, Ms. Rush's first level grievance response, to render a classification opinion on her response. Mr. Egan said that the set of duties referred to in Exhibit E-1 were not under the ELE but the STS group. He said the functions listed in her response do not meet the Ship Repair functions but are a General Services function. To be an ELE, he said an employee must meet the definitions on page 2 of Exhibit E-4. Mr. Egan concluded that, if the percentages for job duties were reversed on the PAS Exhibit G-2, it would become an STS position and not an ELE one.
During cross-examination, Mr. Egan responded that the point rating for the PAS (Exhibit G-2) was 262 but that he had no rating for the PAS (Exhibit G-9). He said that Mr. Blogg had provided him with the duties for the new ELE positions but that he did not do a site visit because there was so much reclassification going on in the government at the time. He could not remember speaking to Mr. Blogg about the cross-training referred to him by Cheryl Hoard.
Regarding the PAS (Exhibit G-9) with effective date of duties January 22, 1993, Mr. Egan said that he had told Mr. Blogg what had to happen before an effective date could become active. He felt the organizational chart signed by Mr. Blogg (Exhibit G-9) should be accurate. He also felt that, since the PAS (Exhibit G-2) was signed by the employees, it must have been discussed. He did not have a copy of the internal management study regarding the reorganization since he gets involved only after a reorganization is done. Mr. Egan said that "things were on hold until the money was found in January 1994" and the affected employees were paid as ELE 2's as of February 14, 1994.
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Decision Page 15 Regarding Exhibit E-4, the classification implication of extra duties position, Mr. Egan said that it was possible to have a hybrid job description such as the PAS (Exhibit G-2). He said this PAS is a group job description, that is, it is generic and not all employees have to perform the same tasks at the same time but over a period of time they need to do the whole range of duties to meet the job description. He added that you can not take a snap-shot of an employee's functions in order to get on overall assessment. As an example, he said if a mechanic only changed oil, he would be over- classified.
ARGUMENT FOR THE BARGAINING AGENT Mr. Landry argued that what is before me is a pay issue under the Master Agreement, Article M-27, Pay Administration. He said Mr. Turner was told in August/September 1991 that his shop was going to be amalgamated and he would become a SR-ELE-02 level employee. He argued that Mr. Turner was also told in the spring of 1992 that, because two supervisors had retired, he would have to do more paperwork and he was told more than once he would get back pay to April 1, 1992. Mr. Landry reminded me that in February 1993 Mr. Turner was told his pay would be effective as of January 22, 1993 only. The employer then issued an undated PAS, then another one with effective date on it of June 17, 1993 that Mr. Turner signed and subsequently grieved. He was still not paid until February 14, 1994 on an acting basis until his new level was made final on May 1, 1994. Mr. Landry also argued that no one testified that the grievors were ever told they were not doing the full range of duties to qualify as ELE 2's. He reminded me that Ms. Rush said that the TCA's were in fact involved in performing some of the ELE duties in Exhibit G-2 page 2/6 b. and that Mr. Turner said he was involved with duties b. (1), (3), (7) and had done some of (4), (5), (6) but had not gone on board ship.
Mr. Landry argued that the employer has tried to say that the matter before me was held up because of money but at the meeting on February 1, 1993, Mr. Blogg said he was sorry and that he had tried his best but was told by his superiors to write January 22, 1993 as the effective date of duties on Exhibit G-9, that is, the TCA's own job description. He concluded that the entire matter is about restructuring, downsizing, and amalgamation and that those affected relied on Mr. Blogg's promise that they would be compensated for new duties from April 1, 1992. He reminded me Public Service Staff Relations Board
Decision Page 16 that both witnesses Williams and Rix testified that at the May 21, 1993 meeting, Mr. Blogg said that he chose April 1, 1992 just "to keep harmony", a comment denied by Mr. Blogg even though he certified the duties and the organizational chart when he signed the PAS (Exhibit G-9) on March 11, 1993. He argued that Mr. Blogg must not really have meant that January 22, 1993 was to be the effective date of duties since he changed it to June 17, 1993 on Exhibit G-2. He argued that now we are told that the TCA's did not perform the duties until February 14, 1994 even though most of them signed the new PAS in June 1993. Mr. Landry concluded that, if we can not believe Mr. Blogg's signature on two separate PAS's, how can we believe his word. He concluded that if Mr. Blogg promised the effective date of duties would be April 1, 1992, then he must have believed the TCA's were doing the duties as of that date.
Mr. Landry also argued that the doctrine of estoppel as espoused in Canadian Labour Arbitration, Brown & Beatty, Third Edition, 2: 2210, 2-54, should apply in this case because the TCA's were going to grieve their situation earlier on but they were continually reassured by Mr. Blogg, a manager who has the authority to approve acting pay (Exhibit G-14), that they would be paid from April 1, 1992. Mr. Blogg intended to induce the TCA's reliance with his "to keep harmony" comment.
Mr. Landry referred me to: Costain (Board files 166-2-18508 to 18511); Kos (Board file 166-2-25536); Burnett (Board file 166-2-21562).
ARGUMENT FOR THE EMPLOYER Mr. Garneau noted that in the Kos (supra) decision the adjudicator concluded that Mr. Kos did not perform the duties of a higher classification level and denied the grievance. He said the crux of the matter before me is also whether or not Mr. Turner and his colleagues performed the required duties of their positions. He also agreed with Mr. Landry that what we have is indeed a reorganization and amalgamation resulting in reclassification, because the employer wanted more flexibility with the TCA's and was facing financial constraints.
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Decision Page 17 Mr. Garneau argued therefore that I do not have jurisdiction to deal with reclassification since the employer has carte blanche authority to do this as is written in section 7 of the PSSRA that reads:
7. Nothing in this Act shall be construed to affect the right or authority of the employer to determine the organization of the Public Service and to assign duties to and classify positions therein.
He argued that for me to be able to consider that there was a breach of the Master Agreement under Article M-27, Pay Administration, the TCA's would have to have been assigned certain duties and then not have been paid for them. He argued that at no time between April 1, 1992 and February 14, 1994, except for a brief abortive cross-training period in June 1993, were the ELE 2 duties ever assigned to the TCA's. He argued that Mr. Egan, a classification officer, said that without the ELE aspect of the new duties, the merger would have resulted in a STS not an ELE classification. He said the employer had to develop duties for both STS and ELE functions and pay all at the new rate from the time management determined they started to perform the combined duties. This was entirely a management decision and not one for an adjudicator to make, and without evidence of the assignment of duties on April 1, 1992, this pay grievance can not proceed regardless of what Mr. Blogg may or may not have said. He argued that the outcome of the various emotionally charged meetings is a difference of perception but Mr. Blogg tried to get the best possible result for the TCA's. He reminded me that Ms. Williams knew reclassification was a long process because so much was involved. Mr. Garneau did not know how Mr. Blogg could have made any promises in the first place since the PAS at the time was not fully developed.
Mr. Garneau argued that it was true Mr. Turner did do more paperwork after two supervisors retired in 1992, but what he did was not an ELE duty but may have been part of the supervisor's duty. He said Mr. Egan confirmed this in his memorandum regarding the classification implication of extra duties position (Exhibit E-4).
Mr. Garneau argued that in Costain (supra) the adjudicator did not have to decide if the grievors were performing the duties or not, but only the pay issue. He concluded that this is clearly not the case before me. He argued Mr. Landry's claim
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Decision Page 18 that Mr. Turner should be paid as of April 1, 1992 because of what Mr. Blogg allegedly promised could not happen without an accompanying assignment of duties as of April 1. He concluded that the real date to be adhered to in the various PAS's is not just a date when the duties are agreed upon but when they are actually assigned. He added that the TCA's were never officially asked to do ELE duties before February 14, 1994 (Exhibit E-3).
He concluded that I should therefore decline jurisdiction to decide this matter because it is a classification issue regarding the employer's assigned date of duties and not a pay matter, and that I could only deal with this matter if the employees were not being paid for duties performed.
Mr. Garneau referred me to: Nagle (Board file 166-2-21445) and Stagg v. Canada (Treasury Board), (1993), 71 F.T.R., 307.
In his rebuttal argument, Mr. Landry agreed that duties are assigned by management, but Ms. Rush said she could have assigned the duties but would have had to find a replacement so she did not. He argued that Mr. Blogg signed Exhibit G-9, page one, that certifies duties being performed. Mr. Landry concluded therefore that this grievance is about pay and not classification.
DECISION The employer has submitted that the grievors are seeking a determination as to when their positions should have been reclassified. This is precisely the kind of decision which section 7 of the PSSRA precludes me from making. However, in light of the Stagg (supra) decision, I have concluded that this issue is about remuneration, and I therefore have jurisdiction since the grievors are claiming they performed the duties of the higher classification in an acting capacity prior to their actual date of reclassification and therefore should be paid at the higher level. They therefore claim that the employer breached sub-clause M-27.07(a) of the Master Agreement.
Sub-clause M-27.07(a) reads: When an employee is required by the Employer to substantially perform the duties of a higher classification level in an acting capacity and performs those duties for at least the period specified in (b) below, the employee shall be
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Decision Page 19 paid acting pay calculated from the date on which he or she commenced to act as if he or she had been appointed to that higher classification level for the period in which he or she acts,
. . .
For me to decide otherwise would be most unfair, since the employer could assign new or additional duties but not properly reclassify a position for an indefinite period of time and not pay the employee for performing these more onerous duties thereby pursuing the philosophy "akin to that of slavery" referred to by Muldoon, J. in Stagg (supra).
The issue for me to decide now is whether the grievors substantially performed the duties of a higher classification as outlined in sub-clause M-27.07(a) of the Master Agreement.
After reviewing all of the evidence, and recognizing that the burden of proof rested with Mr. Turner and the other grievors to demonstrate that he and his colleagues had been required by their employer to perform the ELE duties during the period from April 1, 1992 until February 14, 1994, I believe that he has failed to meet this burden. I have not been convinced by the evidence on the balance of probabilities that the TCA's were substantially performing the duties of ELE's prior to February 14, 1994. I reached a similar conclusion in Kos (supra). The reclassification process took an inordinate amount of time to complete, whereby one could argue that the employer may have been "dragging its feet" as in Stagg (supra), and during this long period, the grievors believed they were performing the new duties and in light of Mr. Blogg's actions they believed that they would ultimately be paid at the higher rate retroactive to April 1, 1992. I have concluded based on the evidence, that they were not substantially performing the duties of ELE's prior to February 14, 1994.
Unlike Blais (Court file A-846-85, unreported) where the Federal Court of Appeal determined that "... the evidence related by the adjudicator in his decision clearly shows that the applicant had performed the duties of the reclassified position ... " I have not been convinced that the grievors performed the ELE duties during the period in question; therefore they are not entitled to acting pay.
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Decision Page 20 Also, the case before me is a different matter from the Costain et al (supra) decision where the adjudicator gave effect to a determination already made by the employer concerning the effective date of a reclassification.
Unlike Costain (supra) where the evidence established that the employees performed duties of a higher classification for a long time, I have not been convinced that this is the case before me. Additional paper work may have constituted part of the former STS-6's job but not that of an ELE Expediter especially since the MATEX system was not even recognized by Base Supply according to Ms. Rush. Dealing with documentation, catalogues, microfiche, and ordering new items of equipment were already a part of Mr. Turner's responsibilities as described in Exhibit G-12.
Ms. Williams testified that not all TCA's climbed ladders or delivered tools; in fact TCA McKnight was, in Ms. Rush's opinion, the only exception since he worked for painters and sand blasters.
I was not convinced by Mr. Turner that he carried out many of the new duties or substantially carried them out often enough to be able to conclude that prior to February 14, 1994, he met the requirements for acting pay pursuant to sub-clause M-27.07(a) of the Master Agreement. For example, Ms. Rush recalled that Mr. Turner only delivered an item once to a ship.
I hasten to add that, even though the employer had determined as early as 15 August, 1991 on the proposed organizational chart (Exhibit G-4) that there would be a reorganization, the new duties for the TCA's had not yet been drafted, discussed, revised or agreed to by all concerned thereby making it impossible to determine early on what duties they were in fact going to have to perform in the first place.
Regarding Mr. Blogg's alleged promise of providing back-pay to April 1, 1992, I believe the testimony of witnesses Turner, Williams and Logan regarding this promise. I also believe witnesses Williams and Rix regarding the comment that Mr. Blogg said this "to keep harmony". He would have kept better harmony if he had said nothing in this regard since he knew reclassification is a slow process with financial implications, neither of which he had direct control over. This was irresponsible on his part since he created an expectation that was not within his power or authority to deliver on. I Public Service Staff Relations Board
Decision Page 21 do not believe however, as Mr. Landry would have me do, that the employer by virtue of Mr. Blogg's actions is estopped from refusing to compensate the grievors at the higher level prior to February 14, 1994. In any case, I believe that estoppel could only arise in this case if the grievors succeeded in their grievance and the employer attempted to restrict their entitlement to recover acting pay pursuant to the twenty-five day rule established by the Federal Court of Appeal in the Coallier decision (Court file A-405-83, unreported).
According to Canadian Labour Arbitration (supra); ... the essentials of estoppel are: a finding that there was a representation by words or conduct, which may include silence, intended to be relied on by the party to which it was directed; some reliance in the form of some action or inaction; and detriment resulting therefrom.
There was a promise, yes, but it could only be to their detriment if they had been performing the duties during the period in question when they got lesser pay, that is from April 1, 1992 until February 14, 1994, and they had not filed their grievance in a timely fashion in reliance upon this promise. I have not been convinced that they were performing ELE duties. They may have occasionally done so on an ad hoc basis as Mr. Turner did once, but not at the 55% level of their performance as described on the PAS dated June 17, 1993, Exhibit G-2. They expected to receive back pay but, as I have stated earlier, I am not convinced that they were performing the majority of the new duties to warrant acting pay prior to February 14, 1994.
Accordingly, for the reasons noted above, this grievance is denied.
J. Barry Turner, Board Member.
OTTAWA, March 29, 1996. Public Service Staff Relations Board