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HomeMy WebLinkAbout1991-0359.Argiriou et al.92-03-25 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L ON TARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS tSo DUND,~$ S't'RE~'r ',,'VEST, Sb'ITE 2100, TORONTO, ONTARIO. MSG ~0, RUE Db~N[~AS OUEST. BLt~ALt 2~00, TO,~ONTO (Ot,~TA,RIOt M5C, tZ$ =~C$,.bt.L-= -ELECO~ E 4 '5 .-'£"Z- '2~¥ 359/91 XN THE MATTER OF AN ARBITRATION Unde~ THE. CROWN EMPLOYEBB COLLBCTXV~ BARGAXNXHG ACT Be£o~:e THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Ar~iriou et al) Griever The Cro~n in Right off Ontario (Teacher's Pension Plan Board) Employer BEFORE: M. Gorsk¥ Vice-Chairperson 6. Ma~esky Member R. Scott Member FOR THB N. Coleman :~ GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FoR TH~ A. Tarasuk EMPLOYER Counsel Smith, Lyons, Torrence, Stevenson & Mayer Barristers & Solicitors HEARIN~ February 18, 1992 1 INTERIM DECISION During the course of the hearing on February 18, ~[992, an objection was made by counsel for the 'Employer concerning the right of the Union to adduce certain evidence which was alleged to be 'in conflict with the Union's position' as stated in the Amended Grievors' Statement dated July 25, 1991. In accordance with the request of the Board, written submissions were made by counsel for the parties. The submission made on behalf of the Employer is as follows: On Examination-in Chief , counsel for the Grievors attempted to obtain an assertion from the Witness regarding the level of knowledge of, inter alia, The Teachers' Pensio~ Act that is expected of a Client Services Representative II. This level of questioning was referable to the specific wording of Exhibit No. 7 under the title, .Skills and Knowledge, which states the' requirement that the employee must demonstrate, "Good knowledge of the Teagbeys' Pension Act, 1989 and Predecessor Acts, re6~procal agreements and board policies and procedures" [emphasis added]. In response to this line~ of questioning the Witness indicated that she had "an in-depth knowledge of the Teacher~' Pens%Dn Act". Counsel indicated that it was his intention to establish, through the testimony of the Representative Grievor, that the term "good kn¢.wledge", as it appears in Exhibit No. 7, is inaccurate and that Exhibit No. 7 should include terminology that reflects a higher standard of skill and knowledge. The two position specification requirements for Client Service Representative I (which are in evidence before this Board are Exhibits No. 5 and No. 6), under the heading of Skills and Knowledge, call for the incumbent to command a "Thorough knowledge of the Teachers' PensioD Act, 1989, Predecessor Acts, reciprocal agreements and Board policies and procedures" [emphasis added]. In our respectful submission the inclusion of the term, "thorough knowledge" applicable to Exhibits No. 5 and No. 6 defines a standard that is both qualitatively and quantitatively higher than ~he standard of "good knowledge" applicable to Exhibit No. 5. It is our respectful submission that the qualitative and quantitative differential that exists between the levels of knowledge applicable to Exhibits No. 5 and No. 6 as compared to Exhibit No. ? must be recognized for the following reasons: (a) that the incumbents classified as Client Service Representative I (per Exhibits No. 5 and No. 6) are properly classified and this has been established between the parties by way of the Grievance Procedure; (b) that the Union in the AMENDED GRIEVORS' STATEMENT made no assertion that Exhibits No. 5 and No. 6 are inaccurate or, specifically, that the term "thorough knowledge" is inaccurate as it appears in Exhibits No. 5 and No. 6; The Union has also accepted Exhibits No. 5 and No. 6 into evidence; (c) that the Union has entered into evidence the AMENDED GRIEVORS' STATEMENT pursuant to the Board's practice; (d) that the AMENDED GRIEVORS' STATEMENT deals specifi~ally and expressly with the accuracy of the contents of Exhibit No. 7. Specifically, Paragraph 5B provides: "5B. The position specification, dated May 1991, is substantlally accurate with a few exceptions as follows: (a) on page 2, the paragraph which reads: "referring more complex or sensitive cases to a senior position; example, inquiries from MP, survivor pension to a minor, other:" should be deleted and replaced with the following: "discuss and resolve with fellow team members problematic cases in a collegial manner; $ (b) On page 3,' Section 2 should read as follows: .. "Within the team receives and responds to complex or sensitive cases by: processing 'of complex commuted value entitlements under Phase 1 system and under legislation prior to January 1, 1990 which include survivor pensions to the minors; responding to inquiries where the member is requesting information on multiple scenarios with multiple retirement dates; and responding to correspondence from lawyers, Members of Parliament or other member representatives, which pertains to the above cases'." (c) Section 3 becomes Section 4 and a new Section 3. shall be inserted as follows: 3. "Participate in staff trainiag by: (a) conducting/preparing an intensive training programme for new trainees; (b) reviewing files completed by new trainees to ensure that the calculations are cor~rect, the' response to the inquiry, and the entitlement comply with the t'egislation, policy and procedure."" (e) that Paragr'aph 5B make~ no assertion that the standard "good knowledge" contained the positions' specifications,. Exhibit No. 7 is not accurate; (f) that Exhibits No. 5, No. 6 and No. 7 were within the Union's knowledge at the time that Exhibi~ No. 1 was drafted and it was open to the Union to challenge the skill levels as. they are defined in the respective'position specifications; (g) that is was incumbent on the Union to assert such challenge in the AMENDED GRIEVORS' STATEMENT if the Union intended to rely on that assertion; and (h; that on a plain readin9 of Exhibit No. it is patently obvious that any assertion regarding the accuracy of Exhibit No. 7 ~ is l~mited to Paragraph 5B and any assertion that Paragraph 7 is intended to address the accuracy of Exhibits No. 5, No. 6 or No. 7 is clearly an ex post fac.~o expansion of Paragraph 7 of the Amended Grievors' Statement. Recognizing that the standard "thorough knowledge" contained in Exhibits No. 5 and No. 6 has been confirmed by way of a grievance vis-a-vis the Client Service Representative I incumbents, any attempt to re-define ow alter the standard "good knowledge" contained in Exhibit No. 7 relative to the standard contained in Exhibits No. 5 and No. 6 constitutes a substantive and material change in the Union's position. For the reasons stated in the Blomme Award of the Grievance Settlement Board, Board File No. 547/9[, it is our respectful submission that the amendment to the AMENDED GRIEVORS' STATEMENT constitutes a significant and substantial amendment to the Union's position so as to fundamentally change the nature of the grievance, and that the Union ought to be held to the assertions contained in Exhibit No. 1. Bated at Toronto, this 27th day of February, 1992 SMITH, LYONS, TORRANCE, STEVENSON & MAYER Arthur P. Tarasuk By letter dated March 4, 1992, counsel for the Union responded to the above submission: Mr. Tarasuk objected to a question on examination in chief of a representative witness, Ms. Kelly Nelson. Ms. Nelson had testified that she had "in-depth knowledge" of the Teacher ' s Pension Act and Regulations, the predecessor Act and Regulations, Pension Board policies and procedures, and the reciprocal agreements. Mr. Tarasuk objected to a follow-up question which was meant to determine the level of knowledge required of the CSR II position rather than the personal level of knowledge developed by Ms. Nelson. Mr. Tarasuk argues that this line of questioning indicates that the level of knowledge described in the CSR II position specification is now being disputed · .whereas that description had previously bee accepted in the Grievor's Statement Submitted by the Union. Mr. Tarasuk describes the Union's positioa as a significant and substantial amendment to the position set out in the Grievors' Statement. According to Mr. Tarasuk, such amendment must be rejected by the Board in light of the principles in Blomme (547/91). The CSR II position specification describes two levels of knowledge: "good knowledge" of the Teachers' Pension Act, 1989 and predecessor Acts, reciprocal agreements and board policies and procedures, and "working knowledge" of the Pension Benefits act and other related legislation. The Union does not dispute 'this description but maintains that the description is' ambiguous in light of the terminology utilized by the class standards. The Clerk 4 class standard refers to "good background knowledge" while the Clerk 5 class standard refers to "detailed knowledge" of relevant legislation, policies and procedures. The CSR II position specification contemplates two levels ?f knowledge that can correspond to the levels of knowledge in the Clerk 4 and 5 class standards, The refermnce to "good knowledge" can encompass detailed know l,edge as well as background knowledge. The reference to "working knowledge" can correspond to background ~nowtedge as that term is used in the class staadards. Therefore, the Union did not and does not dispute the description of the level of knowledge required in the CSR II position specification. The Union maintains, however, that further clarification of the level of skill required in the CSR II pc. sition is highly relevant to the issue of classification. Mr. Tarasuk argues that the Union has accepted a specific meaning of "good knowledge" because the CSR I position specification (Exhibits 5 and 6) describe a higher level of knowledge as ~'thorough knowledge'~. Mr. Tarasuk seems to argue that the level of,knowledge described in the CSR I position specification ,fixes the description of the level of knowledge for the CSR II position spec~fication, and fixes that level at dlerk 4. Mr. Tarasuk further argues that the Union cannot dispute the scheme he outlines because the description of knowledge in the CSR II position specification was not disputed by the Union and the CSR I position specifications have beer, accepted into evidence. The Union notes that the position specifications for CSR I have been accepted into evidence as the position 6 specifications prepared by the Pension Board for that position, However, the Union expressly has not accepted the accuracy of those position specifica~tions. The Union certainly has not accepted that the level of knowledge described in the CSR I position specification fixes the level of knowledge described in the CSR I~ position specification as the level of knowledge corresponding to the Clerk 4 class standard. The Grievors' Statement submitted by the Union does not accept as accurate the CSR i position specification for the CSR I. The Grievors' Statement submitted by the Union makes abundantly clear the Union's position that reclassification is warranted in part because of the level of knowledge of the relevant legislation and board policies and procedures in the CSR II position. Paragraph 6 of the Grievors' Statement refers specifically to the "specialized knowledge required" while paragraph 7 states that the position of CSR II should be reclassified in part because "detailed knowledg~ of the Teachers' Pension Act and related legislation, policy and reciprocal agreements" is required. The Grievors' Statement clearly puts the Pension Board on notice that reclassification is sought in part on the basis of the levels of knowledge required of the CSR II position. In summary, the Union is not resiling from a pre-hearing position or attempting to withdraw admissions by adducing evidence on the level of knowledge required of the CSR II. position. The union has not disputed the description of knowledge in the CSR II position specification because that description is consistent~ with the higher class standards. The Union ha's put the Pension Board on notice that the level of knowledge required of the grievors is one of the bases for seeking reclassification. Therefore, Mr. Tarasuk's objection to the line of inquiry should be dismissed and the question permitted. Yours very truly, GOWLING, STRATHY & HENDERSON Nick Coleman It is the position of the Union that it is not now attempting to resile from its pre-hearing position, nor is it attempting to withdraw admissions contained in its Amended Statement. 7 In an interim decision, A. Blomme 547/91 (Gorsky), the Board referred to the genesis of the production of statements classification grievances pursuant to the memorandum of the Chairperson of the Board, Owen B. Shime, dated September '6, 1988. At pp. I3-14 of the Blomme case the board noted that: Counsel for the Union argued that the memorandum of the Chaimperson described a voluntary practice with no consequences being visited .upon either party for failure to "exchange such a document." We were urged to find that as this was the case a. party could, with impunity, amend its statement "unless to do so would result in a change in the nature of the grievance." Although the submission of a document pursuant to the Chairperson's memorandum is not mandatory, having chosen to comply with what may be viewed as a nOn-binding directive a party cannot rely on the fact th'at it did not have to do so. The parties have on numerous occasions recognized the good sense in complying wit'h the proqedures described in the memorandum. In the absence of their doing so classification cases are often unnecessarily protracted and give rise to much frustration and rancour. Where a party makes a voluntary statement that was intentionally made it ought to be held t'o what it has said except in extraordinary circumstances. In the B~p~me case, there was a discussion as to what would constitute "extraordinary circums'tances," at p.14. In the case before us, counsel for the Union has taken the position that no request for amendment is being made, inor is there any attempt "to withdraw admissions by adducing evidence" that would amount to a departure from the position taken inl the amended statement or in earlier admissions. This is a case where it is necessary to permit the Union to adduce further evidence before we. can assess whethe:r it is inconsistent with its position taken earlier, which statement 8 cannot now be altered because of the agreement that the extraordinary circumstances referred to in the Blomme case do not exist, rf the Union is correct, we will be able to consider the evidence adduced as we would in the case of any other evidence that is admissible. If we conclude that the evidence can only be viewed as supporting an attempt on the part of the Union to amend its position without grounds being demonstrated for our allowing such amendment, we will ignore it in dealing with the merits of the case. Dated at Toronto this25th day of March, 1992. M. Gorsky- ' rSon G. Majesky - Me~ber J. Scott - Member