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HomeMy WebLinkAbout1990-2510.Callender et al.91-06-27 Decision ONTARIO EMPLOYtS DE LA COURONNE CROWN EMPLOYEES DE CONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNOAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONEiTELEPHONE: (a 16) 326-1388 180, RUE OUNOAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG 1Z8 FACSIMILEiTELECOPIE: (a 16) 326-1396 2510/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Callender et al) Grievor - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFORE: B. Keller Vice-Chairperson G. Majesky Member H. Roberts Member FOR THE A. Ryder GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barrister & Solicitors FOR THE M. Farson EMPLOYER Counsel Fraser & Beatty Barrister & Solicitors HEARING: June 3 , 1991 2 - DECISION The grievors filed grievances seeking reclassification of their positions. The parties subsequently reached an agreement that this Board issue a Berry-type order with respect to those grievances and allowing the employer four months to create a new class standard applicable to the grievors . The parties were unable to resolve the issue of retroactivity with the employer taking the position it is restricted to 20 days prior to the filing of the grievances and the union, on behalf of the grievor, arguing that retroactivity flows from some time before that. Two of the grievors - Callender and O ' Leary - assumed their current position of Building Controler 6 on January 2 , 1989 . Prior to their assuming the position they had been informed by their supervisor-to-be, Mr. Peter Lepper, that he would attempt to have their positions reclassified as the previous incumbents had been classified at a higher level. As the two grievors were not of the view that their positions were properly classified, they agreed that Mr. Lepper would pursue the matter on their behalf. 3 - The evidence indicates that Mr. Lepper diligently applied himself to the task but was unable to convince Human Resources to reclassify the positions . Their consistent refusal is demonstrated by a conversation the grievor' s had to that effect in the summer of 1989 with Mr. Lepper's supervisor, a posting for the .job in September 1989 indicating the classification as Building Controler 6 and a position specification dated January 9, 1990 with the same classification for the position. As a result of the above, the matter was effectively dropped and not actively pursued again by the two grievors until April 1990 at which time Mr. Lepper was replaced by Ms. Anne Thornton. In the meantime, the third grievor Mr. Paul Rademacher, was working in the position as a secondment from March 16, 1989 until October 15 , 1989 . He assumed the position permanently from October 16, 1989. On August 22, - 1990, Ms. Thornton wrote to Human Resources asking them to reconsider the reclassification issue. By memo dated October 17 , 1990, Human Resources declined. That decision was confirmed to the grievors shortly thereafter. The instant grievances, dated November 11, 1990 followed. 4 - On behalf of the grievors it was argued that the tests outlined in Marshall et al , 1797/89 (Keller) were met thus entitling the Board to waive the normal 20 day rule. It was also argued that the doctrine of Laches applies as the right to grieve classification flows from the Crown Employees Collective Bargaining Act (C.E.C.B.A. ) and not the collective agreement. The employer, in response to the Laches argument stated that the issue to be determined flowed from the collective agreement and therefore the doctrine does not apply. It was further argued that not all the tests enumerated in Marshall were met and that the normal 20 day rule applied. The Board was also referred to McKnight, 192/88 (Watters) and Sals, 777/86 (Dissanayake) . A further proposition was advanced by the employer regarding grievor Rademacher. The Board was told that he was piggy-backing on the efforts of the other two grievors and could not benefit from those efforts without some evidence that he had somehow advanced his own case. 5 - In Marshall, the Board enumerated the following tests: 1) The grievors must have, at some time prior to their formal grievance raised the issue with a responsible member of management; 2) There must be at least a tacit understanding that the purpose of raising the issue is to avoid the need for a formal grievance; 3 ) A management representative must have become actively involved in the employee's claim; 4 ) There must be continued understanding by the employee that the matter is till being pursued and has not beenirrevocably denied. What remains to be determined is whether on the facts of the instant case those tests have been met. The evidence demonstrates that there are two discreet time frames that have to be examined. The first deals with the attempts on behalf of the grievors by Mr. Lepper. We are satisfied that the fourth test has not been met. Mr. Callender was candid in his testimony that he was aware that the final decision rested with Human Resources and that they had decided, and he knew, as early as the Summer of 1989 that the positions were not to be reclassified. 6 - The matter was revived, however, when Ms. Thornton replaced Mr. Lepper. That is demonstrated by Mr. Callender ' s testimony and documents filed as exhibits. As in the case of Mr. Lepper, Ms. Thornton was also unsuccessful. The difference lies in that fact that grievances were filed shortly after that information was communicated to the grievors. The employer suggested that test two had never been met. We do not agree and find that the actions of the grievors and their supervisors suggest otherwise. We also reject the argument of the employer regarding Mr. Redamacher. The fact that he was copied on Ms. Thornton ' s memo to Personnel is sufficient indication that the matter was also being pursued on his behalf and not just the other two grievors. The Laches arguement advanced by the grievors can not succeed. In the instant case the Board is exercising remedial authority flowing from the collective agreement. This is distinguished from jurisdiction flowing directly from C.E.C.B.A. - 7 - The grievors are entitled to retroactivity to April 15, 1990 the approximate date of Ms. Thornton' s appointment. We remain seized in the event there is any difficulty with the implementation of this decision. Dated at Nepean this 27th day of June, 1991. M. Brian Keller, Vice-Chair Gary aj s y, Union Member Harry Roberts, Employer Member