HomeMy WebLinkAboutCoutu 89-05-22 IN THE MATTER OF AN ARBITRATION
Between:
FANSHAWE COLLEGE,
(the "College"),
- AND -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION,
(the "Union").
AND IN THE MATTER OF THE GRIEVANCE OF DEAN COUTU
BOARD OF ARBITRATION Paula Knopf, Chairman
R.J. Gallivan, College Nominee
Brian Switzman, Union Nominee
APPEARANCES
For the College Paul Jarvis, Counsel
For the Union Nelson Roland, Counsel ·
The hearing in this matter was held in London on April 26,
1989
PRELIMINARY AWARD
This is a classification grievance. At the outset of
the proceedings, the Union raised a preliminary issue which
the parties asked the Board to deal with before proceeding
further. At the end of submissions, the Board rendered an
oral ruling to the parties which we promised to reduce to
writing. The following records the submissions of the
par~ies and the oral ruling which was rendered.
For an unspecified number of years, the grievor was
classified as a Technician 3. When the parties' new
classification system was introduced in 1986, his position
was classified as a Technician C. On November 27, 1986, he
launched a grievance alleging that he had been improperly
classified and requesting that he be reclassified to the
"Technologist Family retroactive to June 1, 1986." The
grievance was processed through Step 1 of the grievance
procedures between the parties. We were t61d that during
those discussions, the College took the posit~on that the
grievor had been properly classified as a Technician C and
the Union maintained that he should be reclassified to the
Technologist Family and at a higher Pay Band. Discussions
were held between the parties wherein areas of disagreement
were identified. However, the results of the discussions
were to recognize that the parties could not come to a
mutually acceptable resolution of the matter and the parties
agreed to refer the matter on to arbitration and waive the
further steps in the grievance process. By April 8, 1987,
the Step One process was concluded.
The arbitration was then arranged and was scheduled
to De heard before Ian Hunter on January 26, 1988 under the
parties' Expedited Arbitration Process. Un,er this process,
the parties are required to exchange information prior to the
arbitration. In the course of that exchange, the College had
notified the Union on January 8 that it had revised its core
point rating of the grievor's position and it submitted an
Arbitrator's Data Sheet which essentially downgraded the
position to Pay Band 8. The Union wrote to Arbitrator Hunter
on January 15 complaining of the College's change in
position. The matter then went before Arbitrator Hunter as
scheduled on January 26, 1988. The Union took the position
that the College ought not to be allowed to argue anything
less than Pay Band 9 and Technician C for the position. The
Union also took the position that it was abandoning the
argument that the position ought to be considered within the
Technologist Family but that it should be considered a
Technician Atypical within Pay Band 10-. Understandably,
Professor Hunter deemed the dispute between the parties to be
one which ought to be referred to a full board rather than
dealt with under the Expedited Arbitration Process. Hence,
this Board was appointed. We were also told th'at the College
has grandfathered the grievor's pay rate and has 'reclassified
the grievor's position to that of Technician B.
The Union strongly objects' to the way in which the
grievor and the process has been dealt with by the Employer.
It was said that management's behaviour causes two serious
problems. First, it sends out a signal that a filing of a
classification grievance could lead one to be effectively
demoted. Secondly, it was said that such behaviour, which is
outside the context of an attempt to settle, goes contrary to
the Expedited Arbitration Procedures' objectives and
frustrates any attempts to find areas of agreement. It was
said that the effect of demotion of a grievor in a situation
like this would have an irreversible "chilling effect" on
classification grievances. We were asked to hold the
Employer to its original designation of Technician C and not
to allow it to change the position once the grievance was
filed.
In response, counsel for the College stressed that
management has the exclusive right under the collective
agreement to classify and to reclassify employees. Such a
right was said not to be fettered and where the Employer
determines that duties have changed or that errors have been
made in the original classification, the Employer ought to be
free to reclassify the employee. The employee's remedy under
such a situation is to grieve by way of a classification
grievance under Article 18. Thus, it was said that there was
no pre.~udice to an employee no matter what position the
College takes or when it takes it. The Board was reminded
that its jurisdiction and obligation under the collective
agreement was to apply the classification scheme. Thus, the
fact that the College may have recognized that it improperly
classified the Grievor earlier does not deny the Board of
jurisdiction to apply the classification system properly now.
Further, it was said that the Union has no right to complain
about any prejudice because it too has changed its positfon
prior to arbitration from claiminG that the position ought to
be within the Technologist Family to claiminG that it is a
Technican Atypical in Pay Band 10. It was said that the
Union cannot claim to have placed -any detrimental reliance on
the position of the.Employer and that the Grievor himself
would not be prejudiced by the position that the Employer had
taken. In response to the Union's argument about the
chilling effect created by the College's actions, counsel for
the College argued that Grievors in classification cases open
up the issue of their classifications when they decide to
grieve. It was said that if that creates a chillinG effect
"so be it." It was said that the grievor takes a risk when
he files a classification grievance, that his classification
will be raised or be lowered because of the broad
jurisdiction available to the Board. Counsel also pointed
out that the College had increased the core point rating in
some of the areas for the Grievor and suggested that the
Union's position would lead to its detriment if the College
was not allowed to maintain those higher positions in this
hearing.
The Board considered all the arguments given to us by
the parties concerning the policy and jurisdictional matters.
We then rendered the following oral award:
We are mindful that the parties have negotiated
a sophisticated expedited arbitration system in
order to resolve the many difficult classification
problems between them. For the system to function
with integrity and efficiency, it is imperative
that the grievance step process be utilized fully
and effectively. This means that the parties are
under 'the obligation to carefully examine their own
positions and reflect upon each other's positions
as they move throUgh the various grievance steps.
Unless the parties actually embark on the process
with careful reflection, they cannot understand
their own cases or the other side's cases. The
point of the process is that at the end of the
grievance steps, the parties have had the
opportunity to have reached an informed
consideration of what their positions ought to be.
If they have not reached agreement, the remaining
areas of dispute should be clear and are then
referred on to arbitraiton. It is these areas of
disput~ that should be the subject matter of the
arbitration, otherwise the grievance process makes
no sense and serves no purpose.
It is clear that the parties are free to
discuss settlement between the time they refer the
case to arbitration and the arbitration itself
without prejudice to their positions. Such
discussions are to be encouraged. Further, it is
clear that the parties are free to change their
positions both before and after the grievance is
launched. This is because the classification
system itself is an ongoing analysis of job
positions and positions can be reclassified under
the proper circumstances.
But, as a matter of policy, and in order to
preserve the integrity of the grievance step
process, we conclude that it is crucial that the
parties De held at arbitration to the position that
they asserted at the end of the grievance process.
Only mutual consent should allow otherwise.
We should also add that we acknowledge that our
jurisdiction to apply the classification systemv is
unfettered Dy the parties' positions.
For all these reasons, we have concluded that
both parties must be held to the positions that
they asserted at the end of the grievance step
procedure and we shall deal with the arbitration on
that basis unless they agree that we should proceed
otherwise.
After rendering this .oral ruling, the parties agreed to .
adjourn to further mutually agreeable dates to begin
consideration on the merits of the grievance.
The matter is therefore adjourned until the next
agreeable date.
DATED at Toronto, Ontario, this 22nd day of May
1989.
"R. J. Gallivan"
College Nominee
"Brian Switzman"
Union Nominee