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Home My WebLink About1986-0611.Sturch et al.89-03-23ENPLOYESDEL4 COWONNE OE“OwARIO CQMMISSION DE T REGLEMENT DES GRIEFS Between: 0611/86 IN TNBB MATTER OF AN ARBITRATION Under, THE CROW BNF'LOYNNS COLLNCTIVN URGAININO ACT Betore Before: TNB GRIBvAnCE SE m B&D OPSEU (Sturch et al) - and - The Crown In Right of Ontario (Ministry of Attorney General) 'Grievor Employer J. Forbes-Roberts~ VlCe-Chairp3rSOn J. Anderson Hember D. Wallace Member C~ APPEARING FOR S. Grant THB GRIEVOR: Counsel Gowlins & Henderson Barristers and Solfcitors APPBARING FOR THE EMPLOYER: Hearina: L. Mcit?tosh Law Of:lcer Crown Law O:fice, Civil~ Mjnlstry of Attorney General Octobc~ :5, 1987 i. . The instant case involves multiple identical gzievances filed by Court Reporters I vho sought the classiflcatlon of Court Reporters II. In an avard dated January 7, 1999 this Board issued an avard finding that on both the class standard and usage tests the classifications had a dlstlnctlon vlthout a difference. The grievor8 vere awarded the posltlon of “...Court Reporter II effective tventy (20) days prior to the filing of their respec- tive grievances, vlth the attendant remuneration.n The Board remained seized in the event of any difflcultles in the implemen- tation of that avard. Later the parties indicated that they vere indeed encounter- ing difficulties and vlshed the Board to reconvene vhlch it duly did on January 4th, 1999. The sole issue then before thls Board is the proper method of implementing lts avard of January Tth, 1900. The difficulles in implementation arise in tvo’ areas, f lrst the’proper level of remuneration pursuant to the ordered reclas-” alflcatlon and second, the effect of nev Class Standards develop- ad before the initial hearing butpromulgated after the issuance of the original.avard in thls matter. At first glance the Bwrd’s January I, 1908 order vould seem quite clear. The grievers aze avarded the position of Court Reporter II effective tventy (20) days prior to their reqjective grievances, vith the attendant remuneration. Hovever vlthln each level of Court Reporter series there are four (4) salary steps. Basically an employee is initially assigned a c start rate (level II, and the.n each year on his or her annlver- sary date performance 1s revleved to establish vhether or not a merit increase 1s varranted. Employer counsel vas candid on the point that vhlle the yearly progression through the steps are knovn as merit increases,barrlng serious’ misconduct they are virtually automatic until the employee hlts the top Ieve> (level 4). The grievers’ respective seniority dates in the relevant position range from 1974 to May 1963. Thus it vould appear that at least four (4) of the grievor8 had achieved the top salary range in the Court Reporter I classification. While the Employer understood that it had to reclassify the grievor6 as Court Reporters II It appeared confused over the correct salary level vithln the four (41 step range. In fact the grievor8 vere moved from Court Reporters I, level 4 to Court Reporters II, level I - or from the top of one range to the start 1 ( -2- level of the next. Absent a Mlnlstry of the Attorney General directive govern- ing reclassification pursuant to a Board Order the Employer chose as its model article 5.1.2. of the collective agreement which states .In part: 5.1.2. An employee ao Is RARRR&& shall receive that rate of pay In the salary range of the nev cla5sIfIcation vhich Is the next higher to his present ‘rate Of pay except that.. . (factors irrelevant .for purposes of present consideration). For the folloving reasons this ‘model I5 Inappropriate to the pre5ent circumstances. In the first and most obvious place Ye are not dealing vlth promotions. This Is not a case in vhich the grlevors.are assuming nev and more complex tasks at vhich It may vell take time to become proficient. Rather this Board found that Court Reporter I f--the Court Reporter II classifica- tIon’~5 dutles. Betveen the tvo vithout a differonce.” there Is a I.. .dIstInctIon Thus the promotion analogy does ,not hold true. Second and flovfng from the first reason is having found In general that Court Reporter I, equals Court Reporter II, the logical extension Is to suggest that the’tvo identically con5t- rutted salary grids can be super- Imposed on each other. In other vords, In general Court Reporter I = Court Reporter II. Therefore specificelly Court Reporter I, level I - Court Reporter 11, level I; Court Reporter I, level II = Court Reporter, II, level II etc throughout the series. We therefore order that the grievor8 should be placed In the Court Reporter II classification on exactly the same numerical level each occupied In the I classIfIcatIon. Employer counsel raised a jurIsdIctIonal objection to the Board specifying a vage level vithfn a classification. Employer counsel relied on s. 18 (1) (a) of the Crovn Employees Collective Bargaining Act (‘C.E.C.B.A”) the relevant portion of vhich states: Every collective agreement shall be deemed to provide that It IS the exclusive function of the employer to... determine, (a) . . . l -3- (b) merit system (sic). . . yhlle 8. 18 (2) of C.E.C.B.A. gives the Board the statutory authority to determine questions of classification, It vas ar- gued that levels of classification and remuneration ere tvo different .Issues, revlev of the latter being proscribed by 8. 18 (2) (b). / We agree that vere this Board to vhimslcally essl& a vage rate to a job It vould clearly be In excess of Its jurisdiction. Hovever that Is not vhat ve have done. In finding that Court Reporter I, level I - Court Reporter II, level I etc. etc. ve dare merely placing the grievor5 vithin the merit system ?&R&X established and administered by the Employer. The Employer’s objection Is hereby dlsmlssed. We turn nov to the Union’s second perceived difficulty vlth the Iniplementation of the January 7th, 1988 avard. At the hearing on the merits the Employer sought to lntro- duce nevly developed Class Standards. While Union counsel successfully objected to their Introduction on the grounds of relevance, he candidly admitted that he had also thereby been put on notice of their existence. Fbllovinq the Board directed reclassification the Employer promulgated the nev Class Btan- dards. By their terms the nevly re’classlfied Court Reporters II (the qrievors) once again found themselves Court Reporters I. Union counsel seeks to have thie Board declare that the new Class Standards are null and void vi8 a vi8 the grievora. ‘, There are already approximately thirty (30) grievances outstanding regarding the Rev Standards. In addition It Is the Union’s position that proper notice vas not given to them under article 5.8 ‘of the collective agreement, and therefore the nev Class Standards do not even exist. We find that the proprIety.of notice under article 5.8 of the agreement and of. the reclassifications under the nev Stan- dards (If they exist) are matters clearly beyond this Board’s jurisdiction. Those grievances are separate and discreet from the ones under present consideration. Barring resolution, they vi11 properly qo before different panels of this Board. We understand the grievers’ frustration at the unfortunate timing In this case. It must seem analaqous to one step forvard and tvo steps back. Hovever It must .be recognized as a problem of timing. What If the nev Standards had been promulgated tvo (2) or even t.3) years after the Board directed reclassification. -I- Barring an allegation of bad faith could the Union then return to this panel? We think not. The Board therefore declares the matter of the nev Class Standards (If they exist) and their effect to be beyond the jurisdiction of this Board. Dated at Toronto this /Idi day of narch , 1909. J. Anderson, Member D. Wallace. Member