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HomeMy WebLinkAbout1986-0758.Gondor.88-12-15- I ONT**,O EMPLOYES OELA CO”RoNNE CROWNEMP‘oIEES OEL’ONTARIO GRIEVANCE 111 q BOARD COMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS Br?tween: OPSE'J (L. Condor) IN THE MATTER OF AN ARBITRATION hder THE CROW)! EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Grievor: For the Employer: HEARING: - and - The Crow? in Right of Ontario (Ministry of Government Services) t-7. v. watters T. J. Kearney Ff. F. O'Toole Vice-Chairoerson Member Member R. E. Stoykewych Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors M. Farson Counsel Sanderson, Laing Barristers & SoliCitOrS October 14. 19BR Employer DECISION This proceeding arises from the grievance of Mr. Lee Gondor dated Uey 30, 1986. The grievor at a11 material times occupied the poeition of Realty Tax Admiaietretor in the Realty Section of the Ministry of Government Services. Be alleged in his grievance that he YAS improperly classified as a Clerk 6 General and requested A reclassification to Executive Officer II (Atypical) “retroactive to January 1, 1986 with full benefits end interest, or the appropriate classification”. At the commencement of the hearing, a preliminary issue vea rained by the employer relating to, the standard to be used for purpose-s of assessing the epproprieteneee of the grievor’s classification. The parties were in agreement that the following .chronologp wee relevant to the resolution of such i&sue: 1. April 16, 1986 2. May 30, 1986 3. November 2, 1986 6. January 29, 1981 O.P.S.B.U. and Uanegement Board of Cabinet entered into en agreement for the establishment and implementation of a job classification system for the Office Adminietration Group (“OAG”). Implementa- tion of OAG was mode retroactive to December 31, 1985. The grievor grieved that he was improperly classified as a Clerk 6 General end sought a remedy retroactive to January 1, 1986. The grievor wee reclessi fied ae OAG 11 , retroactive toDecember 31. 1985. The grievor grieved that he was improperly classified es OAG 11 and sought e remedy retroactive to December 31. 1985. -l- 5. August 28, 1987 Following a stage 2 meeting on June 2, 1987,. the employer reclassified the grievorto OAG 12 effective January 1; 1907. 6. October 16, 1987 The employer mo-vnd the effective date of .the grievor’s OAG 12 reclassification from Jenurry 1, 1987 back to September 1, 1986. It is to be noted at this juncture that the sole grievance.before the board on the initial day of hearing wee that filed on Hay 30. 1986. It is apparent, however. that the second grievance dated January~29, 1987 remains outstanding despite the subsequent reclassification to OAG 12. The part,ies filed a copy of the Agreement referred $0 above. This document vhich is titled “Appendix To The Collective Agreement” purports tom deal with numerous items relating to the implementation of the OAG system. Of particular interest is paragraph S concerning ‘Grievances’. It reads. “5.1 There shall be a stay on classification grievances vith respect to positions which meet the criteria for iacluaioo in the Office Administration Group until the Office Administraeion Group Job Evaluation Plan has been implemented in all Ministries. 5.2 In order to process such classification grievances, the time limits for the employer’s response at Stage One shall be extended until the Office Administration Group Job Evaluation Plan has been implemented in all Plinistries, but not later than October 31, 1986. . 3 5.3 Hotwithstanding Articles 5.1 and 5.2, any classification grievance relating to classes in Group V filed prior to the actual date of reclassification of the subject position within the Office Administration Group Job Evaluation Plan may be processed in the normal manner in accordance with the provisions of the Collective Agreement with respect to Working Conditions and Employee Benefits.” -2- The parties agreed that the Clerk 6 classification fell within Group V and that the present grievance was therefore encompassed by paragraph 5.3; The position of the employer,.in brief, was that the board should restrict itself to the OAG system in determining the propriety of the grievor’s classification. This position was premised on the retroactive implementation of OAG. It was noted in this regard that the grievor’s reclassification to OAG 11 was retro,active to December 31, 1985. Counsel submitted that this retroact i ve application served to.extinguish or vacate the Clerk 6 status for the entire remedia.1 period betveen January 1 and May 30, 1986 It .was therefore argued that there was no reason to utilize the former classification system in this c’ase. Rather, counsel suggested that the ultimate issue in dispute between these parties, viz the grievor’s classification subsequent to January 1, 1986, required a determination as to the. appropriateness of his OAC classification. We were consequently invited to proceed directly to the OAG system as to do otherwise would result in the board deciding a point which had become “moot” by virtue of the retrospective nature of OAG~. The employer further argued that paragraph 5.3 of the ~ Agreement was not intended to perpetuate grievances under the -3- . I former class, standards beyond the date of actual reclassification, Indeed, it was the employer’s position that upon actual reclassification, employees falling within the scope of paragraph 5.3 were to be treated in a fashion identical to those employees subject to paragraphs 5.1 and 5.2. Hare specifically, in both instances it was suggested that the OAG system vould be used to, resolve matters relating to classification. Counsel described paragraph 5.3 as being “procedural” in nature in that it simply provided for the processing of grievances in the interim period batveen the commencement of the Agreement and the date of actual reclassification. In summary, while the employer conceded that the grievance of Hr. Gondor.fell within paragraph 5.3, it r dis,puted the claim that we vere therefore required to resort.to the Clerk series for resolution of the issue,placed before us. The board, in essence, was asked-to conclude that no effect should be given to the grievor ‘s former classification once he was actually recl,assified pursuant to the OAG system. The response of the union, in briaf, was that should proceed to hear and determ ,in@ the grievance v to the Clerk series. In this regard, counsel emphas the board th reference zed that the grievance was proper as’of Uay 30, 1986, given that at such time the grievor was, in fact, a Clerk.6 General. Simply put, it vas the only classification that could be then grieved. It vas therefore submitted that the grievor had a right under both the collective agreement and The Crown Employees Collective .Bargaining Act to continue with his complaint as originally.filed -4- It was further submitted that paragraph 5.3 of the Agreement supported this right as it specifically stated that classification grievances pertaining to Group v employees were to be processed in the “normal manner” if filed prior to the actual date of reclassification. For these reasons, we were urged not to amend the grievance in the manner.advanced by the employer. Counsel emphasired,that there were two separate and distinct grievances outstanding. He argued that the first of these had not been rendered “moot” through the retroactive application of OAG. We were asked to consider the fact that OAG was not mentioned in the Hay 30, 1986 grievance. As a consequence, it should proceed without reference to the OAG system. Any issues relating thereto could be deferred until the adjudication of the second grievance. Additionally, it YBB suggested that certain findings of fbct and/or t’systemic” issue8 could arise from the hearing of the initial complaint. It was the uni.on’s position that such a possibili~ty should preclude.the application of the concept of mootneee in that valid interests of the grievor or the union might othervise be extinguished. , After considering the respective srguments, the board has concluded that the grievor is entitled to proceed with the .grievance dated Hay 30. 1986 in its present form. It i,s clear that such grievance falls squarely within paragraph 5.3 of the Agreement aa it concerns a Group V employee and was filed prior to the actual date of reclassification. In such circumstances, the parties intent, as expressed in the aforesaid paragraph, is -5- that the grievance is to be processed in the “normal manner”. When read in the context of paragraph8 5.1 and 5.2, this must mean that a grievance of this type may.be processed through the various stages of the grievance procedure and ultimately to arbitration. If the parties to the Agreement had intended that such a grievance could only proceed in it8 original form until the actual date of reclassification, we think more precise leered. The board has not been found therein supports the.position language would have been se persuaded that the languege taken by the employer. Given the conclusion stated above, we do not think it appropriate to resolve the isrue raised through recourse to’the concept of mootness. Indeed, were we to do so it is arguable that such approach would be contrary to the aetual intent of the parties as found in paragraph 5.3. The board has revieved the following authorities relied on by the employer: Boyle, 0675185 (Brandt); Robb8, 0462-0465186 .(Kannedy); Elliott, 712184 (Draper); Re Niagara South Board of Education and Ontario Secondary School Teachers’ Federation, District 7, 26 L.A.C. (2d) ,332 (Kennedy, July, 1980); Re United Electrical Workers, Local 504, and Canadian Westinghouse Co. Ltd., 14 L.A.C. 279 (Reville, January, 1964). ’ It is our .judgment that ,the case before u8 is distinguiehable from that found in these listed awards. The boards in the first two award8 were not directly called upon to interpret the impact of paragraph ~5.3 of the Agreement on the processing of a Group V grievance. Similarly, the boards in the -6- rendered were not in the context of an agreement which. contemplated the proc.essing of original grievances, notwithstanding the retroactive implementation of 8 new classification system. This board has also concluded that the two OutStanding grievances should be consolidated and heard by a singLe panel of the board. We have come to this conclusion for the following reasons: 1. Such a course of action vi11 permit the board to expeditiously assess the appropriateness of the Clerk 6 General, the OAG 11 and 12, and the EO II (Atypical) classifications. We think’it preferable that evidence pertaining to these contested classifications be p~resented within the context of a’aingle proceeding. This will avoid the delay that would likely result from each of .the grievances being heard separately. Further, it will eliminate the possibility of inconsistent deCiSiOn8 being reached in respect of the ultimate classification being claimed. 2. The~grievances claim relief for the same remedial period. Again, we consider it preferable that one panel of the board declare and award any relief to which the grievor may be entitled in this period. 3. Both grievances claim thar.-EO II (Atypical) is the appropriate classification. The evidence and argument in support of such claim would likely be substantially similar, if not identical, were the grievances to proceed separately. In our judgment, little benefit would be derived from s’uch duplication. remaining cases were generally being a.sked to determine the fundamental question of arbitrability. Here, we are required to select which of two classification systems should be employed vis a vi8 an admittedly arbitrable grievance. Further, the decision8 -7- 4. We do not agree that the two grievances could be processed independently in the manner suggested by the union. The union’s position seems to assume that the employer could not rely on the OAG clssslfication in the Clerk 6 General grievance. In our assessment, such assumption is unwarranted. Specifically, we conclude that there 1s nothing to preclude the employer from arguing, in the course of such grievance, that the OAG classifications were the “best fit” vithin the remedial period. The agreement cited above does not so restrict the employer. Given that we think that evidence relating to OAG would be admissible in the first grievance, the board can find no reason’ for requiring its,repetition at a second hearing. This suggests the wisdom of consolidating the grievances so that they may be heard by one panel of this board. While the presentation of evidence on the two classification systems may present certain difficulties, both counsel conceded that the matters could be heard together. To minimise this t possibility, both counsel are encouraged to engage .in pre’hea,ring discussion8 with a.view to reaching some agreement as to the presentation of the evidence. This will hopefully serve to narrow the issues and shorten the hearing. For all of these rea8on8, the board orders that the two grievances be consolidated. DATED at Windsor, Ontario, this 15th day of December , 1988. Lesrney, Member -8-