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Home My WebLink About1983-0548.Crockford et al.85-02-15? c-- o ONTARIO CROWN EMP‘O”EES GRIEVANCE _ SETTLEMENT BOARD 540/83 & 555183 556183 t 699183 -207184 IN THE MATTER OF AN ARB:ITRATION Under ' L.~, THE,-CROWN: EMPLOYEES C0LLEI:TIV.E BARGAIN I Before ~ THE GRI E,VANCE SETTLEMENT BOARD Between: ~.. '.,~ .[. _, - .I -CT '~ Before: . For the Grievor:, ;., For the Employer: .A Hearing': /- :. .-y. NG ACT OPSEU (P. A. Crockford & S. McDougall, -1 ,. S. Guliano,, 't al (R. Ferguson,':et a L. Harasym, et al 1 - and - .3* 4.. ;' :.\ The Crown in Right of Onta;io (Ministry of Cdmmunity a.nd~:- : /: : Spcial Services) .. .:, ; : R. J. Roberts Vice Chairman E. McVey -. Member : : L. D. Foreman Member ('1 J. Miko Grievors Employer Grievance Officer _ _ : Ontario Public Service Employees Union R. Itenson . Senior. Staff Relati-o.ns Qfficer Staff Relations Branch Civil Service Commission February ,5, 1985 2. ', INTERIM DECISION At the outset of the hearing in this matter, the Union requested a preliminary ruling from the Board which, if granted, would have estopped the Ministry from leading certain evidence in its case. For reasons which follow we decline to issue any ruling at this stage of the matter. It seems to the Board that, to rule now would be premature, in the sense that it is not known whether the Ministry even intends to lead evidence of the nature suggested by the Union. The Union, of course, will have an oppor- tunity to renew its request for a ruling at a more convenient time during the course of the hearing. ‘.:. .Cn May 9, 1983, a panel of this Board which was chaired by this Vice-Chairman issued an award in Re Brecht and Ministry of Community and Social Services, G.S.B. #171/81, in which-it was decided that the grievors, who were classified as Observation and Detention Borne Workers 2 (0 6 D 2 1, should be reclassified as Supervisors of Juveniles 2 (SOJ 2 I. This reclassification came about as a result of a comparison between the duties actually being performed by persons in these two classifications at the Syl Apps Centre. Based upon the evidence that was adduced at the hearing, it was found that "there seemed to be Sittle, if any, real difference' between the work being performed by the SOJ 2 's and 0 & D 2's at the Syl Apps Centre", id., .at p. 1. This conclusion was reached only after the matter had been taken to the Divisional Court at the instance of the Union. Originally, the Board declined jurisdiction, inter alia. upon the . 7. 3. ground that to grant the grievors the reclassification would amount to a forbidden review of an exclusive management right, i.e., the right < CO spin out different'classifications within an occupational group: It seemed to the panel that to entertain the grievance would : intrude upon this right because the claims of the qrievors amounted to "a contention that there should not be a 'separate classification for observation and Detention Home workers, at least with respect to those workers at the Syl Apps Centre." Original award in Brecht, at p. 7. ‘:. .~ On December 21, 1982, the Divisidnal Court came to a different conclusion. The Court determined that 'the Board did :... have jurisdiction of the merits., In the course of its reasons, ! .,:. the Court observed,. "On .a classification grievance the Board is - generally mandated to consi~der.two matters, namely, whether or not -, the grieyor's job measured against the relevant class standard comes within a higher~ classification which he seeks, and, even if the fails to fit within the higher class standard, whether there are employees:perf,orming the same duties in a higher, more.senior classification." Id. at p.,l. The Court remitted the matter to ,the Board for determination in accordance w,ith its decision, and it wa,s as'.a result of this that the award grant.ing the aforesaid reclaxificatipn came about. : . At this point, it also should be noted that in.a companic cas'e to Brecht; Re Davis and Ministry of COITmUnity & Social SerViCeS, G.S.B. t170/81 (February 25, 19821, the same panel of the Board concluded that the grievor, who was an 0 s D 3 r was doing essentialiy the same work as an SOJ 3 at the Syl Apps Centre. For the same reasons as in Brecht, the Board initially refused to take jurisdiction of the matter. Subsequently, however, after Court proceedings which included an appeal by the Ministry to the Ontario Court of Appeal, a settlement occurred in which the grievor was moved into the classification of SOJ 3 . This move appears to have com- pleted the elimination from the Syl Apps Centre of the separate classification for Observatiion and Detention Home Workers. The present proceedings appear to have arisen out of an impasse between the parties upon the question whetherthere ought to be an across-the-board elimination of the 0 6 D classification. The submissions of the parties at the outset of 5 the hearing tended to make it clear that all persons in the-province who now hold a classification at one level or another of the 0 & D series are seeking reclassification to the equivalent level of the SOJ series. Because the grievances also contain claims for retroactive payment of the wage differential between the two series, there also are grievances from persons who have moved on to other jobs but who, at some point in time during the period of claimed retroactivity, held a job in the 0 & D classification. It seems readily apparent that if these grievances are successful--setting aside, for the moment, the claims for retroactivity--there will occur a complete depopulation--and hence de facto elimination-- -- ef the 0 6 D classification. In its request for a preliminary ruling, the Union 5. indicated that at least for those grievors holding the classi- fications of 0 L D,2 and:3, it will base its. case upon. a detailed comparison':of -their duties and responsibilities with those pf'the. former 0 & D workers .at the Syl Apps Centre;. This. approach appears to be consistent with the second route that~the Divisional,Court noted in Brecht as available to a grievor in a classification case, i.e., showing that "there are employees performing the. same ,duties in a .'higher, more senior classification." Id. at p,. 7- Because.the'former 0 & D workers at the Syl Apps Centre are now classified as SOJ's, they lable.for purposes of making this.kind of ‘would appear,to be avai comparison. : . ~. :~ I. / ,' It was the concern of the Union that in responding to the Union's case in chief, the Ministry might attempt to re- lit~igate the Brecht and Davis cases. It was submitted that the Board shoti,ld not welcome the prospect of the Ministry taking the I . . present proceeding as an opportunity to' introduce 'better evidence I_ 1 : ,,. than might have been introduced in the foregdlng two c~a&.es in an attemptto~persuade this Board that the jobs of the 0 & D workers . . .I. ~_ ;A~ '- ': at the Syl Apps Centre were not as close as originally thought to those of,the SOJ's. Based upon the principles of issue estoppel, . . the Union submitted, ~'the Ministry should be estopped by the Board ._ .from attempting,to engage in such an exercise. . <.’ .’ The 'Board concludes, however, that it would be premature to address the question of issue estoppel at this juncture in the proceedings. In his submissions in response to the contention of : : the Union, counsel for the Ministry denied that there would be any attempt in his case to re-litigate Davis and Brecht. Moreover, the comments of counsel regarding this case,while understandably general in nature, tended to indicated that there would, instead, be considerable concentration upon strictly requiring the Union to prove that the jobs at issue are essentially identical to those of the former 0 & D workers at the Syl Apps Centre. These submissions went a long way toward convincing the Board that it would be in- appropraite at this stage to make the ruling requested by the Union. Such a ruling would, at best, be in anticipation of the submission of evidence which might never materilize. Because of this, it might well be regarded as an unwarranted limitation upon the Ministry's case. In light of the above, the request for a preliminary ~ ruling is denied. Of course, the Union will be free to renew its request, if necessary, at a more convenient point in the proceedings. 1985. DATED at London, Ontario, this 15th day of February, ..--- L. D. Fol'eman, Member