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HomeMy WebLinkAboutBruno at al 93-03-19IN THE MATTER OF AN EXPEDITED CLASSIFICATION ARBITRATION PROCEEDING UNDER ARTICLE 18.4.3 OF THE COLLECTIVE AGREEMENT and ARTICLE 18.4.4 UNDER WHICH A CLASSIFICATION BOARD OF ARBITRATION ORDERED THIS PROCEEDING BETWEEN: ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY IN THE FORM OF GEORGE BROWN COLLEGE (hereinafter called the "College") ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR SUPPORT STAFF EMPLOYEES) (hereinafter called the "Union") GROUP GRIEVANCE MARY BRUNO et al OPSEU FILE NO. 92C257 (hereinafter called the "Grievor") EXPEDITED ARBITRATOR: Richard H. McLaren COUNSEL FOR THE COLLEGE: Stephen Gleave COUNSEL FOR THE UNION: Andrew Lokan A HEARING IN RELATION TO THIS MATTER WAS HELD AT TORONTO, ONTARIO, ON MARCH 26, 1993 AWARD On October 22, 1992, by agreement of the parties, a classification Board of Arbitration composed of the Expedited Arbitrator herein, and the Union Nominee, Sherril Murray, and the College Nominee, David Guptill, convened a hearing for the purposes of hearing a group grievance dated January 21, 1992. The Grievors are training consultants in the Ontario Skills Development Office of the Business and Industry' Training Divisi6n of the College. They were classified as Support Service Officers D, payband 13, with a core point rating of 840. They sought through the grievance and arbitration proceeding to have their positions re-classified. The award of Arbitrator Hunter dated September 20, 1991, determined that the core point rating ought to be 869 points, thereby confirming the classification established by the College. The group grievance was filed and came before the Classification Board of Arbitration. At the time of the proceeding before the classification Board of Arbitration on October 22, 1992, an objection was raised by the College that the matter was res judicata. The Board of Arbitration ordered the parties to provide written argument concerning this objection because of its potential affect on the entire classification system. They did so and a unanimous decision of the classification Board of Arbitration was issued on March 19, 1993, in which it indicated: "This Board is not in the position to assess the evidence which '3 might have been called to establish if there was a material change justifying a further expedited arbitration rather than treating the matter as res judicata. The calling of the comparable evidence is res judicata. For all of the foregoing reasons it is found that the grievance before this Board of Arbitration is res judicata in a limited respect because of the rendering of the expedited arbitration award in 1991. To this extent the preliminary objection of the College is upheld. It is ordered that this aspect of the matter is not arbitrable before this Classification Board of Arbitration. However, the evidence which might constitute material change has not been heard. This Board orders that it ought to be heard before an expedited arbitrator. If it is found that there is a material change then the principle of res judicata does not apply. If it is found that there is no material change the matter -.-~ .......... '. is not arbitrable being res judicata .in.:~both respects~.'-~As a ~matter of convenience the matter is being returned to the expedited procedure ought to be heard by the Chak of this Board acting as an expedited arbitrator. However, the present Board will meet with the parties at 10:45 a.m. on Friday March 26,1993 as previously set by the Board to deal further with this aspect of the award." Pursuant to that award, the Classification Board of Arbitration met with the parties for a continuation hearing on March 26, 1993. The parties then proceeded to call evidence before Arbitrator McLaren, acting as an expedited Arbitrator under the procedures of the collective agreement and the order of the Classification Board of Arbitration. This proceed was restricted to establishing if there was a material change in the functions of the job so as to determine that the principle of res judicata would not apply to the decision of expedited Arbitrator Hunter. There are two factors of the Working Conditions element of the job classification matrix in which the Union alleges that there has been a material change. It is alleged that there is a change in the visual strain of the job activity; and the Work Environment element within the 4 Working Conditions factor. Since September of 1991 when Arbitrator Hunter issued his decision, the College has added the availability of a computer system with a programme known as SkillsLink. The evidence of the Manager of the department, Ms. Welnetz and Representative Grievor, Ms. Mary Bruno, is that the employees used the computer no more than 10 to 15 hours per year. It is used to look up information, which could otherwise be located with more difficulty and delay manually. That type of-change is so small-,., and has so little impact on the total job; and, particularly on the core functions of the job, that it ought not to be considered to even begin to approximate the sort of change which might be required to find that there is a material change justifying the re-examination of an expedited arbitration proceeding. Therefore, it is found that there is no material change to the core functions of the job by way of visual strain, which would result in any necessity to re-evaluate the scoring of the visual strain element of the Working Conditions matrix in the classification system used by the parties. The foregoing finding of fact means that if there is to be any further examination of the previous expedited proceeding it must be on the basis that there has been a material change with respect to the Working Environment element. At the proceeding before the expedited Arbitrator the College had rated the position at A5; the Union at C4. Arbitrator Hunter in his award set the rating at B3. Before Arbitrator Hunter the parties agreed on the Position Description Form, which is at Tab 13 of Exhibit 1 in this proceeding. In that forum the parties had agreed that disagreeable or unpleasant working conditions to which the position 5 might be exposed involved "driving/public transportation" 26-50% and "hazardous working conditions (Clients)" 10-25%. The evidence before me is clear that these individuals spend 75 % of their time outside of their office environment. At the time that Arbitrator Hunter's decision was being heard and determined a change in the office procedure was implemented. Prior to September of 1991, there had been a screening process after initial inquiries, or as a result of proactive promotion when a potentials.user of the services of these consultants was identified~: A more detailed form was completed by the perspective applicant (Exhibit 3 of these proceedings) and after screening the Consultant was sent out to the perspective client armed with a reasonable amount of information and an initial determination that the provision of services to the client was required. Following the change in September of 1991, a different form was used,' which is Exhibit 4 in these proceedings. It provides identity information of an inquirer by a potential user of the services of the Consultants. After that date the Consultants then'had to make a call on this potential client rather than having the clients screened initially. This resulted in an increase in a number of calls and the Consultant having to make a determination as to eligibility. The statistics show that the number of calls made by the Consultants rose from over 600 to over 1,100, there being the addition of one more Consultant in the latter time period. It is asserted that this change has increased the driving aspects of the job and, therefore, is a material change, which justifies a re-examination of the expedited proceedings of Arbitrator Hunter. Arbitrator Hunter found at p. 10 that: 6 "...twenty-five percent of their time at head office ...approximately twenty percent of their time driving...to and from clients, and the remainder on site with clients... He also appears to have considered that there was an element of disagreeable conditions associated with carrying out the work at a location other than the employer's offices for 75% of the total work time. On the basis of those findings a ruling was made that the appropriate classification was at B3. Any change in the classification would result in sufficient additional points for the Grievors to be considered to be in the next higher payband being just 2 points short- of~,the threshold for a change in the pay level to payband. :~1~4. On reviewing everything that was described by Ms. Bruno and listening to the testimony of the Manager it is the Arbitrator's conclusion that there has been some change in the amount of driving associated With the job. However, there are tWo important points to nOte with respect to that factual determination. First, the classification system rates the job functions. .... One of the job functions is to interview clients; to gather information and make eligibility decisions. Another job function is to drive to and from client's locations. In respect of the first job function the changes in September of 1991 clearly required the Consultants to be at client's offices more frequently. Files which would have in the past never got through the screening process, thereby not requiring an onsight visit; were now receiving at least one initial onsight visit by the Consultants before elimination on the basis of ineligibility. The obvious conclusion is that there would be more frequent site visits which will change the driving component of the job. 7 The judgement call to be made is the degree to which that change has occurred. I find that the degree of change is still within the broad limits of what seems to have been determined by examining the award of Arbitrator Hunter. There is no doubt that there has been an increase in the driving aspects of the job, however that increase is not so much so as to make it a material change. It was sUbmitted on behalf of the Union in argument that a material change would be any change which would change the points. While that could be one definition of material change for the purposes of the doctrine of res judicata that would not be the definition. What is required for the doctrine of re.__~s judicata is that there has been a change to the job functions, which is significant and substantial. It is found that there is no significant or substantial change to the job functions. They are still functions performed in the office, at the client's location and driving to and from the client's location. What has changed is the mix of the activity and the Volume of onsight Visits. 'Tl~e emPloyees are not Spending a larger amount of their time away from the Employer's offices. In order to accommodate the additional volume the same job functions are required with a modest shift in the mix of them. Part of that volume is absorbed by the addition of a further consultant within the department increasing the number from 14 to 15. The driving activity, while changing in amount, has not become such a substantially larger proportion of the out-of-office activities as to lead this Arbitrator to conclude that there has been a material change in the circumstances such as tO justify treating the previous expedited arbitration decision as being one which no longer should apply. Therefore, I find that while recognizing that there is change to the job functions it is insufficient to cross the threshold of being a material change so as to preclude the application of the doctrine of res judicata. Therefore, based on this finding of fact and conclusion of law and on the order of the 8 Classification Board of Arbitration, of which I was the Chair, it must be ordered by me, acting as the expedited Arbitrator that there is insufficient change in the job functions as they relate to the driving or hazardous aspects of the job to justify the matter as being a material change. Therefore, pursuant to the Classification Board award and order it must be ordered that the matter is res judicata. It is so ordered. DATED AT LONDON, ONTARIO THIS 8th DAY OF APRIL, 1993 .,'~'~.'5~;'"'-~ "~:- ~ t- '*. v'? ~ Richard H. McLaren, C. Arb. IN THE MATTER OF AN EXPEDITED CLASSIFICATION ARBITRATION PROCEEDING UNDER ARTICLE 18.4.3 OF THE COLLECTIVE AGREEMENT and ARTICLE 18.4.4 BETWEEN: ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY IN THE FORM OF GEORGE BROWN COLLEGE (hereinafter called the "College") ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR SUPPORT STAFF EMPLOYEES) (hereinafter called the "Union") GROUP GRIEVANCE MARY BRUNO et al OPSEU FILE NO. 92C257 (hereinafter called the "Grievor") CLASSIFICATION BOARD of ARBITRATION: Richard H. McLaren Sherril Murray, Union Nominee David Guptill, College Nominee COUNSEL FOR THE COLLEGE: Stephen Gleave COUNSEL FOR THE UNION: Andrew Lokan A HEARING IN RELATION TO THIS MATTER WAS HELD AT TORONTO, ONTARIO, ON OCTOBER 22, 1992. AWARD Twelve Grievors pursued a classification grievance before expedited arbitrator Hunter at a hearing held on September 4, 1991. They were all Training Consultants in the' Ontario Skills Development Office of the Business and Industry Training Division of the College. They were classified as Support Service Officers D, Payband 13 with a core point rating of 840. They sought through the expedited grievance and arbitration procedure to have their positions reclassified. The award of Arbitrator Hunter dated September 20, 1991 determined that the core point rating ought to be 869 points thereby confirming the classification as being and remaining within payband 13. It would have taken two more points before the core point rating would have justified a move up to payband 14. This group of grievors continued to remain dissatisfied with their position classification. They brought another group grievance dated January 21, 1992 (Exhibit itl Tab 7). It is this grievance which is the subject matter of this award. The College in response to this grievance took the position that a decision by an expedited arbitrator is final and binding under Articles 18.4.5 and 18.7.7.(Exhibit itl Tab 8). The parties being unable to resolve this matter through the grievance procedure agreed between themselves that it ought to be referred to a full Board of Arbitration as is provided for in Article 18.4.4.(Exhibit it 1 Tab 9). Counsel for the parties agree that this procedure and the appointment of this Board of Arbitration is in accordance with the Collective Agreement and the Board has the jurisdiction to determine the matter. 3 At the hearing held on October 22, 1992 the College brought a preliminary objection that the matter was res judicata and therefore ought not to be heard and dealt with by this Board of Arbitration. The Union submits it is not challenging or relitigating the earlier expedited award. It submits it is only calling into question the earlier award to a limited extent in one area of Working Conditions which accounts for a very small portion of the total points. Its concerns focus on the Environmental element of Working Conditions. Management had rated the position at A5 which is 3 points; the Union had argued C4 which is 18 points; with the Arbitrator awarding B3 which was 7 points. Any alteration in this factor would result in sufficient points to put the core point total over the threshold of 871 thereby moving the employees to payband 14. The College requested at the October hearing that this Board make a ruling on its preliminary objection. The Board of Arbitration ordered that the parties provide it with written submissions on the grievance and the preliminary matter. The written argument of the College was received on November 30, 1992 and on behalf of the Union on December 23, 1992. The College submits that the matter is res judicata because the grievances are identical. It is submitted that there are no material changes in facts which justify a fresh review of the situation. There is no basis for finding that the expedited arbitrator made a manifestly. incorrect decision so as to not apply the principles of res judicata. The collective agreement also acts as a bar to reconsideration when it provides for an expedited procedure with specially trained arbitrators and is exclusive of any other process of dispute resolution. In support of its 4 position reference was made to the following arbitration decisions: Re Vancouver Public Library Board, 3 L.A.C. (3d) 179 (Greyell, 1981); Re Acme Strapping Co., 22 L.A.C. (4th) 400 (Baum, 1991); Re Steel Co. of Canada, 27 L.A.C. (2d) 252 (McLaren, 1980); In an unreported decision by a Board of Arbitration chaired by Arbitrator Herman between Montgomery Elevator Co. Limited & Local 50~ International Union of Elevator Constructors dated December 18, 1985; In an unreported decision by Arbitrator Brandt between Fanshawe College of Applied Arts and Technology & Ontario Public Service Employees Union in a grievance of Janet Dame dated December 17, 1988; an unreported decision by a Board of Arbitration chaired by Arbitrator Brent between NEI/Ferranti-Packard Transformers Limited & United Steelworkers of America Local 5788 dated January 25, 1991; and, an unreported decision by Arbitrator Hunter between Fanshawe College of Applied Arts and Technology & Ontario Public Service Employees Union in a grievance of Francois Kroger dated November 28, 1988. The union submits that classification grievances are by their very nature continuing because the job is changing and evolving. Therefore, the outcome of a prior grievance can not be final and binding. The Union alleges a material change in the facts so that the doctrine of res judicata does not apply. In the process of deciding on what are the appropriate ratings comparative assessments may be made with other employees involved in comparable duties or conditions. These were not considered to be within the expedited arbitration process and ought not to now be so. It is further submitted that such assessments are not to be made before expedited arbitrators and that when the situation has arisen they have exercised their jurisdiction to refer the matter to a Board as is permitted and required under the Collective Agreement. The Board ought to reconvene and consider such comparative evidence. In support of the position of the Union reference was made to the following decisions: Canadian Labour Arbitration (2ed) p. 73-76 (Canada Law Book, Toronto); Re Int'l Nickel Co. of Canada Ltd., 18 L.A.C. 284 (O'Shea, 1967); Re Canadian Pacific Air Lines Ltd., 23 L.A.C. (3d) 216 (Munroe, 1986); Re Ross (Abbott) Laboratories Ltd., 11 L.A.C. (4th) 1 (Frankel, 1990); Re Saskatchewan Wheat Pool, 22 L.A.C. (4th)5 (Solomatenko, 1991); in an unreported decision by Arbitrator Brandt between George Brown College & Ontario Public Service Employees Union Local 557 in a grievance of S. Reid dated August 4, 1989; in an unreported decision by Arbitrator Hunter between George Brown Community College & Ontario Public Service Employees Union in a grievance of Horatia Francois dated November 2, 1987; Ministry of Housing, grievance of Komendat et al, Grievance Settlement Board File Nos. 1246/90, 1247/90 and 1248/90; an unreported decision by Arbitrator Hunter between George Brown College of Applied Arts and Technology & Ontario Public Service Employees Union in grievances of Angelo Gullo and Rachael Strangis dated August 23, 1989; an unreported decision by Arbitrator Knopf between George Brown College of Applied Arts and Technology & Ontario Public Service Employees Union in a grievance of R. Venturo dated January 12, 1989 The relevant provisions of the Collective Agreement read as follows: 18.4 Classification Grievances 18.4.1 Grievance to College Official An employee who claims his/her assigned job is im- properly classified and that he/she should be properly classified to another classification named in Appendix E (i) or should be classified as an atypical position may present a grievance in writing to Ihe College official designated responsible for classification grievances. The written grievance must specify at least the job fam- ily and payband claimed.by the employee to be appro- priate. Where the employee is claiming he/she should be classified in an atypical position, the written griev- ance must specify the payband requested and must specify the job Iamity where appropriate. 18.4.1.1 Retroactive Payment It is understood that there shall be no retroactive pay- ment prior to the date of presentation of the written grievance as specified above. 18.4.2 Grievance Process 18.4.2.1 Step 1 - Meeting and Information Provided The College Official shall arrange a meeting within fourteen (14) days after receiving the grievance to permit the employee and a Local Union Representa- tive [he Opportunity of making representations in sup- port of the grievance. The College Official shall ensure that the current Po- sition Description Form (PDF), as per Article 7.2.2, is provided at least five (5) days prior to the meeting. At the meeting, the employee must first indicate'in.writ- ing whether he/she is in agreement with the PDF and if not what specific disagreements he/she has with it. A discussion to resolve any differences shall then take place. At this meeting, following discussion on the POF, both parties will exchange, in writing, core point rating by factor for the position in dispute. 18.4.2.2 College Official's Decision Within fourteen (14) days after the receipt of the core point rating by factor from the Union, the College Of- ficial shall give his/her decision in writing. It is under- stood that the grievance cannot proceed further until the core point rating by factor and the specific dis- agreements on the PDF, if any, have been received by the College Official, in writing from the Union. 7 18.4.2.3 Referral to Arbitration After Step 1 Where the grievance has not been resolved at Step 1 but there is agreement concerning the PDF, the matter may be referred directly to Arbitration by notice in writing given to the College within fourteen (14) days of the date the Grievor should have received the College's decision under Step 1. The matter will be referred to a single arbitrator as provided in Article 18.4.3. 18.4.2.4 Step II Where the grievance has not been resolved and where the grievor is not in agreement with the PDF, then he/she shall refer the grievance in writing to the President of the College within fourteen (14) days of the date he/she received or should have received the decision. The President or his/her designee shall convene a meeting concerning the grievance within fourteen (14) days of the presentation, at which the grievor shall have an opportunity to be present. The President or his/her designee shall give his/her ~. decision in writing, within fourteen (14) days following the' /' meeting. 18.4.2.5 Referral to Arbitration After Step II Where the grievance has not been resolved at Step II the matter may be referred to Arbitration by notice in writing given to the College within fourteen (14) days of the date the grievor should have received the College's decision under Step II. The matter will be referred to a single arbitrator as provided in Article 18.4.3. On mutual written agreement signed by the Local Union and the College, the matter shall be referred to an Arbitration Board as provided under Article 18.4.4.1 18.4.3 Expedited Arbitration Where the grievance has not been resolved, it shall proceed as herein provided: 18.4.3.1 Arbitrators Any matter so referred to arbitration, including any questions as to whether a matter is arbitrable pursu- ant to this process, shall be heard by one of the fol- lowing specially trained Arbitrators; G. Brand[ B. Keller G. Brent R. McLaren J. Devlin I. Springate I. Hunter The Arbitrators shall be assigned either by. agreement or failing agreement, by lot. The parties may from time to time by mutual agreement add further names to such list. All Arbitrators so added shall undergo a training ses- sion on the Classification/Point System, to be jointly developed and presented by the parties, and all cur- rent Arbitrators shall undergo reorientation to the Classification/Point System every two (2) years. 18.4.3.2 Time A single Arbitrator appointed under this expedited process shall commence to hear the matter referred within twenty-one (21) days of his/her appointment wherever possible, and shall issue a brief wriEen no- tice of his/her decision within fourteen (14) days of the hearing. Copies ol the decision shall be sent to the Local Union, the College, OPSEU Grievance Depart- ment and the Council of Regents. 18.4.3.3 Arbitration Data Sheet The Arbitration Data Sheet must be completed and signed by both parties in advance of the hearing. 18.4.3.4 Information to Arbitrators The following shall be received by the Arbitrator no less than fourteen (14) days prior to the hearing: - the PDF supplied by the College; - a completed arbitration data sheet; - a brief written submission by the Union describing the grievance and referencing appropriate section(s) of the PDF; - a brief written submission by the College. The parties shall deliver their written submissions to the other party at the same time that they are forwarded to the Arbitrator. No written submission or materials can be considered at the hearing that have not been provided by the parties in conformity with the process set out in this clause. 18.4.3.5 Site The hearing will take place at a site mutually acceptable to the parties. Failing agreement, the Arbitrator shall select the site. 18.4.3.6 Hearing The parties agree that the process shall be informal and that legalistic processes normally used in conventional arbitration shall not be used. Up to three (3) Management representatives and three (3) Union representatives may attend the hearing. The parties will inform each other no less than five (5) days in advance who will attend. One (1) person from each side will be designated as spokesperson. The Arbitrator may ask questions of any of the Union or Management representatives present. The spokesperson for each party may give a summary statement normally not exceeding fifteen (15) minutes at the conclusion of the question period. While it is generally not the intent of the parties to use an outside legal counsel at an expedited arbitration hearing, the parties agree that where they intend to use such counsel at the hearing, they shall notify the other party at least ten (10) days before the date of the hearing. In addition, a translator may be present if necessary. The side that requests the translator shall be responsible for the cost involved. By mutual written agreement five (5) days in advance each party may introduce an observer/observers to the meeting. 18.4.4 Classification Arbitration Board The Arbitrator appointed under Article 18.4.3.1 may decide that a particular grievance should be referred to an Arbitration Board on receipt of the documents referred to in Article 18.4.3.3 or in Article 18.4.3.4 or at the hearing. Either party may recommend such referral in its written submissions to the Arbitrator. 18.4.4.1 Arbitration Board Selection The chairperson of the Arbitration Board shall be selected from the list included in Article 18.4.3.1 and the nominees selected pursuant to the provisions of Article 18.8. 18.4.5 Powers of Arbitrators in Classification Grievances The single Arbitrator or Arbitration Board hearing a classification grievance shall have the powers set out in Articles 18.7.4 to 18.7.8 inclusive. 18.4.5.1 Restrictions The single Arbitrator or Arbitration Board is restricted to determining whether the grievor's PDF accurately reflects his/her assigned job content (where disagreement exists) and to determining whether the grievor's job is properly classified pursuant to the CAAT SUPPORT STAFF JOB EVALUATION MANUAL. 18.7 Grievance re: Dismissal and Suspension 18.7.1 General Articles 18.7.2 and 18.7.3 apply to an employee covered by the Agreement who has completed his/her probationary period, it being understood that the dismissal or suspension of an employee during the probationary period shall not be the subject of grievance. 18.7.4 Powers The Arbitration Board shall have those powers set out in the Colleges Collective Bargaining Act, 1975. 18.7.5 Limitations The Arbitration Board shall not be authorized to alter, modify or amend any part of the terms of this Agreement nor to make any decision inconsistent therewith nor to deal with any matter that is not a proper matter for grievance under this Agreement. 18.7.6 Arbitration Board Power The Arbitration Board may dispose of a grievance without further notice to any person who is notified of the hearing and fails to appear. 18.7.7 Majority Decision The finding of the majority of the Board as to the facts and as to the interpretation, application, administration or alleged contravention of the provisions of this Agreement, shall be final and binding upon all parties concerned including the employee(s) and the College. 18.7.8 Cost Sharing The College and the Union shall each pay one-half (1/2) the remuneration and expenses of the Chairperson of the Board of Arbitration and shall each pay the remuneration and expenses of the person it appoints as its nominee. Res Judicata was described in the Stelco award, supra, at p. 257 to be: In arbitration matters, res judicata arises where a board is called upon to decide an issue that is identical to one decided by an earlier arbitration board, involving the same parties and under the same or an unaltered collective agreement. The rationale behind such a rule is to prevent a never ending series of cases relitigating the same issue and set of facts. It is a matter of.convenience and a cost effective rule. Here the elements of the doctrine are met in that the same parties are involved. It is the same group of grievors. The grievance is proceeding under the same unaltered collective agreement under which the expedited award was issued. Thus, the situation comes down to whether it is an identical issue.' 12 Are there material changes in facts which might justify the arbitration of the grievance before the Board? One submission on behalf of the Union is that classification grievances are of a continuing nature because of the evolution and change which a position undergoes in a dynamic and changing workplace. Therefore, the outcome of a prior expedited classification grievance ought never to be final and binding on a subsequent one. To accept such a proposition would encourage grievors to relitigate their case repeatedly until they achieved the classification level they believed or thought they ought to have. The parties have addressed that issue in their collective agreement in Article 18.7.7, which is incorporated into the powers of expedited Arbitrators and Boards of Arbitration by 18.4.5, it specifically provides that the expedited process is to be final and binding. The doctrine of res judicata is not applied where the second potential consideration of the matter by another arbitrator or board concludes that the first deliberation was manifestly wrong. See Re Steel Co. of Canada Ltd., supra. There was no allegation of the expedited award being manifestly wrong. Material change is alleged in the areas where the Union would like to lead evidence. That is that more time is spent driving since the expedited arbitration which makes the working conditions more disagreeable; and, a new computer system is causing greater visual strain. The grievors attempted to have the "PDF" altered in connection with their 1992 grievance in these areas. The submissions of the Union to the expedited arbitrator were filed as Exhibit #1 Tab 15. The evidence which the Union wishes to call has not at this point in the 13 proceedings been called. Therefore, this award has been rendered without consideration of any new evidence. That evidence may be a material change. This Board has not heard that evidence and accordingly is not in the position to make that determination. The Union counsel submits that there was a choice made to utilize the expedited arbitration procedure thereby precluding discussion of comparable other jobs which may rate the driving aspects of a position differently. The expedited arbitration jurisprudence holds that this is a reason for exercising a discretion granted under Article 18.4.4 to refer a matter the parties initiated as an expedited procedure to a full Classification Arbitration Board. They could have made such submissions to the expedited arbitrator who would then have had to consider a course of action under the Article. However, a judgement determination was made quite properly, in this Board's view, to proceed by way of an expedited process without reference to a Classification Board of Arbitration thereby precluding the calling of comparable evidence. It is simply too late now, having made an entirely reasonable and justified judgement call, to say before this Classification Arbitration Board that the Union representative at the time could have taken this approach in which case the matter would have had to go in all likelihood to a full board of arbitration. This ex post facto rationale after one learns of the outcome of the expedited process is a good example of exactly why the doctrine of res judicata is appropriate to apply in this case. Some strategic choices were made in the course of selecting and then using the expedited arbitration procedure. Now when the outcome is not what the Union and the grievors had hoped it would be they seek before this Board to change those strategic choices thereby justifying this process. That is not a reason for granting a proceeding such as this one 14 involving a different choice of tactics with respect to the same evidence of driving a motor' vehicle in the course of the job. What is being requested is a reconsideration of the expedited arbitration procedure in respect of that aspect of the case. In those circumstances applying the principle of res judicata is both appropriate and justified. The submissions of the Union on this point are rejected. What the Union is really asking for in this case is that new evidence and arguments about it and some of the former evidence be submitted for our consideration. We are in effect being asked to review the expedited arbitrator's decision as if we were an appellate review body sitting in judgement over him. The provision in the collective agreement in Article 18.7.7 is intended in express and direct language to preclude that from occurring. This Board of Arbitration refuses to receive evidence and different arguments about the original evidence. Comparative evidence can not be called in an expedited proceeding but could be in a classification proceeding before a full board according to the paries arbitration jurisprudence. However, the parties have also addressed that point int their collective agreement. They precluded, in the expedited process, the introduction of new written materials by Article 18.4.3.4. They could not have done in front of the expedited arbitrator what they would now like to do before this Board. There is no originating right to call evidence in the expedited procedure which is arbitrator driven. The parties supply information which is not proved in the legal sense. The arbitrator asks questions of the parties and then applies to the submissions and information the parties job evaluation scheme giving a quick decision. The Union having proceeded down the route of an expedited hearing for the classification grievance can not later 15 change its form in front of a Board of Arbitration into a more traditional arbitration process modelled more along the lines of the legal process of proof and adversarial confrontation. This was the very process that the parties tried to escape by establishing this expedited system. If this Board were to entertain the request being made here it would undermine the parties carefully crafted expedited process and procedure for dealing with classification grievances. This Board is not in the position to assess the evidence which might have been called to establish if there was a material change justifying a further expedited arbitration rather than treating the matter as res judicata. The calling of the comparable evidence is res judicata. For all of the foregoing reasons it is found that the grievance before this Board of Arbitration is res judicata in a limited respect because of the rendering of the expedited arbitration award in 1991. To this extent the preliminary objection of the College is upheld. It is ordered that this aspect of the matter is not arbitrable before this Classification Board of Arbitration. However, the evidence which might constitute material change has not been heard. This Board orders that it ought to be heard before an expedited arbitrator. If it is found that there is a material change then the principle of res judicata does not apply. If it is found that them is no material change the matter is not arbitrable being res judicata in both respects. As a matter of convenience the matter in being returned to the expedited procedure ought to be heard by the Chair of this Board acting as an expedited arbitrator. However, the present Board will meet with the parties at 10:45 a.m. on Friday March 26,1993 as previously set by the Board to deal further with this aspect of the award. '16 DATED AT LONDON, ONTARIO THIS 19th DAY OF MARCH, 1993. I concur/~ Siqned "Sherril Murray" Sherril Murray, Union Nominee I concur/~o~k -D , College Nominee GeorgeBrown. College