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HomeMy WebLinkAboutGroom 99-05-05BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES' UNION, LOCAL 109 (hereinafter called the Union) ~ANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY (hereinafter called the College) CLASSIFICATION GRIEVANCE OF MS. LYNDA GROOM (hereinafter oalled the Grievor) ~XPEDITED ARBITRATOR PROFESSOR IAN A. HUNTER APPEARANCES: FOR TBE UNION: Ms. Barb Ford, Local Representative FOR THE COLLEGE: Ms. Sheila Wilson, Personnel Officer AN EXPEDITED ARBITRATION HEARING WAS HELD AT FANSHAWE COLLEGE, LONDON, ONTARIO ON MAY 3, 1999 1 AWARD The grievance of Lynda Groom (Exhibit 1) is dated January 26, 1998 and alleges improper classification. As required, both parties submitted written briefs to the Arbitrator prior to the arbitration hearing on Ray 3, 1999. The briefs highlighted an issue concerning which P.D.F. should be used in this arbitration. MS. Groom'6 P.D.F. dated 29 November, 1994 was entered as Exhibit 2. Ms. Groom's P.D.F. dated 28 April, 1998 was entered ae Exhibit 3. On this document, the Grievor had writtenr "I do not agree with this job description". At the date of the grievance (January 26, 1998 - Exhibit 1) the applicable P.D.F. was Exhibit 2 dated 29 November, 1994. At that time the Grievor was classified as a Clerk, Payband 7. Following a College reorganization in 1996, and subsequent to a re-evaluation of thirty-six (36) positions within the newly- created Information and Customer Services and Resistrars Office thirty-six (36) positions were re-evaluated. 2 The Grievor's position was upgraded from Clerk, Payband 7 to Clerk D, Payband 8. The grievance (Exhibit 1) came on before me for expedited arbitration on May 3, 1999. The first issue which must be addressed is which P.D.F. - the P.D.F. at the date of the grievance (Exhibit 2) or the P.D.F. in effect at the date of arbitration (Exhibit 3), May 3, 1999 - should govern in these proceedings. I initially entered them both as exhibits (P.D.F. 29 November, 1994 Exhibit 2; and P.D.F. 28 April, 1998 Exhibit 3). In opening statement, Ms. Ford for the Union objected to any reference to the 28 April, 1998 P.D.F.. She stated that the Grievor and the Union came prepared to deal only with a case based on the 29 November, 1994 P.D.F. (Exhibit 2). Ms. Ford gave me a written copy of her opening argument and it concluded: "... We also object to Sheila Wilson telling managers and in fact, not allowing them, to use adjectives that appear in the manual when they write up job descriptions. We would like you to state in your award that this is not only appropriate, it is helpful with regard to stating the clear understanding o~' the parties (Grievor and reporting manager) as to the duties i.e. significant judgement needed etc.. We request you rule that this is 3 not ~n order for the College to deny freedom of expression. · · " After hearing opening submissions from both parties, I made an ora~ ruling as to which P.D.F. should govern these proceedings. I reiterate that ruling in this written Award. I held that the P.D.F. that should govern this proceeding is the one currently in effect (Exhibit 3, 28 April, 1998). I reached this conclusion for three (3) reasons: (1) To hold otherwise would be to freeze in stone the position of the parties at the date of the grievance. In fact, every incentive should exist for parties to modify their respective positions during the various grievance meetings, and to attempt to settle their differences in advance of arbitration. Exhibit 3, the 28 April, 1998 P.D.F., indicates that the College modified its position on several job factor$~ agreeing with the Union's position, and eliminating these factors as mat~er$ in dispute. (2) To use the 1994 P.D.F. would be to conduct an entirely artificial arbitration. As a result of the second step grievance meeting, the reorganization in the department, and the new P.D.F. (Exhibit 3) three (3) job factors that 4 were formerly in dispute have now ceased to be in dispute. They are now agreed. To allow arbitration on factors which are now agreed, as though they were still matters in dispute, would be to engage in a farcically artificial process. I do not believe that it was the intent of O.P.S.E.U., nor of the Council of Regents, nor of the Joint Classification Committee, to create expedited arbitration in order to deal with non-existent issues. (3) Finally, I note that the P.D.F. in this case (Exhibit 3) was provided to the Grievor, and through her to the Union, more than a year before this hearing (i.e. in April, 1998). In such circumstances, I cannot see that any prejudice flows to the Union from the use of the revised P.D.F. (Exhibit 3). For these reasons, I ruled that I intended to use, and to rely upon, the 28 April, 1998 P.D.F. (Exhibit 3). However, I concluded my oral ruling at the hearing with three other concerns. (1) Ms. Ford's opening statemmnt indicated that the Union was prepared to deal only with Ms. Groom's initial grievance (Exhibit 1) based on the 1994 P.D.F. (Exhibit 2). 5 I ruled that I intend to use the 1999 P.D.F. (Exhibit 3). I indicated that if the Union was unprepared to deal with the case on that basis, they could make an application for an adjournmmnt. (2) The Union submitted that to proceed using the second P.D.F. (28 April, 1999) will, in effect, dispose of two (2) other grievances (a second grievance filed by Lynda Groom and a grievance of Barb Ford) which are not properly before me. At this stage, I do not know enough abouteither of these grievances to know if that so. But if it is so, I indicated that the Union may wish to apply for an adjournment and consolidate all of these grievances to be heard before the sam~ Arbitrator, or Arbitration Board. In any event, it is not uncommon for one classification decision to be dispositive of other grievances raising the same or similar issues. I indicated that how the Union wished to proceed was up to them; but I ruled that I intend to consider, and use, the 1999 P.D.F.. (3) My third concern related to the final paragraph of Ms. Ford's opening statement (quoted supra). 6 I advised both parties that if either one raises this issue, I would rule that this was not a suitable case for expedited arbitration, and the issue should then go to a tripartite arbitration board. As I understand the Arbitrator-driven expedited arbitration, it is intended to des~ with (a) classification issues (b) which can be resolved by hearing the evidence only of the Griever and his/her supervisor. The third issue envisages evidence from other witnesses (including, most likely, Ms. Wilson, who would then be in the position of both presenting a case and testifying as a witness in the same case). Finally, I noted that the Union and the Griever have indicated disagreement with the contents of the 1999 P.D.F. (Exhibit 3); it has been my experience that such cases are also unsuitable for expedited arbitration, because this is an issue that cannot be resolved simply by the attenuated process, and witnesses, in expedited arbitration. Waving given my ruling, I invited both parties to caucus and consider their positions. After having done so, the Union returned and requested an adjournment. The College took the position that the matter should proceed. ? After considering the position of both parties, I ruled that the Union's request for adjournment should be granted. Pursuant to Article 18.4.4 of the Collective Agreement I have decided that this particular grievance (Exhibit 1) should be referred to an Arbitration Board. Dated at the City of London this ~day of ~ , 1999.