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HomeMy WebLinkAbout1991-0578.Harrison et al.92-02-07n n BOARD COMMISSION DE SETTLEMENT RkGLEMENT DES GRIEFS BEFORE : IN THE NATTER OF AN ARBITRATION under TEE CROWN EMPLOYEES COLLECTIVE BARQAINING ACT Before THE QRIEVANCE SETTLENEWT BOARD OPSEU (Harrison et al) - and - Grievor The Crown in Right of Ontario (Niagara Parks Commission) Employer 3. Samuels Vice-Chairperson M. Lyons Member A. Stapleton Member FOR TRR GRIEVOR M. Doyle Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR TEE EMPLOYER S. Gleave Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors October 8, 1991 2 The grievors are Tree Climbers, classified within the NPC classification system as Horticulturist 1. They are paid at the same rate as is an Agricultural Worker 3 in the Civil Service Commission classification system. They grieve that they are wrongly classified and that they ought to be classified as Arboriculturist 1 in the CSC system, or that some suitable classification should be developed to cover their positions. At OUT first day of hearing, a number of questions arose in the opening statements that required further research by counsel. S,O we adjourned, leaving counsel to make written submissions concerning three matters: 1. What is the status of the Niagara Parks Commission, and its relationship with its employees? 2. Are these employees “civil servants”, or ought they to be “civil servants”? If the answer to this is “yes”, then they mu.st be classified within the CSC system. 3. Is the CSC system incorporated in the Niagara Parks Commission collective agreement? In their written submissions, the parties were agreed that the NPC is an agency of the Government of Ontario; that the NPC’s employees are not “civil servants” (in the Union’s brief, this point was agreed “for the purposes of this grievance”); but that these employees are “Crown employees” within the meaning of this term in the Crown Employees Collective Bargaining Act. The Union then submitted that the Civil Service Commission’s classification system had been incorporated into the collective agreement between OPSEU and the NPC. The Employer argued that it was necessary for us to hear evidence to determine whether or not the CSC’s classification 3 system had been incorporated into the NPC collective agreement. And in its final reply, the Union did not oppose this suggestion. The Employer went on to ask for a declaration that the NPC employees are not “civil servants”. This request was made though the Union acknowledged that, for the purposes of this grievance, these employees are not “civil servants”. The Employer maintains that this matter is in dispute between the parties and ought to be decided by this Board. Furthermore, the Employer asks for an award of costs against the Union, because the Union had abandoned its argument that the NPC employees were .“civil servants”, and it was this argument which necessitated the early closing of the first day of hearing. In our view, it is necessary to hear evidence to determine whether the CSC classification system has been incorporated into the NPC collective agreement, or.whether the NPC classification system governs the grievors’ classification. And we will reconvene to hear this evidence and any other evidence necessary to a final determination of these grievances. With respect to the Employer’s request for a declaration that the grievors are not “civil servants”, in our view this is no longer an issue before this Board and we will content ourselves with recording that, for our purposes, the parties were agreed that the grievors are not “civil servants”. It should be noted, however, that the Union’s acknowledgement that the grievors are not “civil servants” was not made lightly. At OUT first day of hearing, counsel for the Union said that it would be the Union’s position that the grieiors were &her “civil servants” or ought to be “civil servants”. And this suggestion was one of the reasons that we adjourned to let counsel prepare full written argument. The second question we left with the parties was: 4 Are these employees “civil servants*‘, or ought they to be “civil servants”? If the answer to this is “yes”, then they must be classified within the CSC system. P This Board notes that the Union’s acknowledgement that, for the purposes of this hearing, the grievors are not “civil servants”, came after tim,e was given to the Union expressly for the purpose of researching the Union’s suggestion that the grievors were “civil servants”. In these circumstances, in our view, the Union ought to think very seriously before it raises this issue before this Board yet again. The Union’s admission that, fear the purposes of this hearing, the grievors are not “civil servants”, is tantamount to an admission which ought to bind the Union for the future as well. With respect to the Employer’s request for an award of costs, in our view, the opening statements and the Board’s questions as a result of the statements, raised issues which the parties may not have had ti opportunity to explore fully before the hearing. It was OUT view that counsel ought to have the opportunity to explore the matters fully before we proceeded, because the answers to our preliminary questions would govern how we would proceed. Neither counsel asked for an adjournment. The Board decided that it would be best to adjourn. In these circumstances, it w;as not the fault of either counsel which led to the early end of the first d.ay of hearing. Therefore, this is not an appropriate case for an award of costs. We will now reconvene to deal with the following questions: 1. Is the CSC classification system incorporated into the NPC collective agreement? If it is, then the grievors have never been properly classified within that system, and this Board will entertain arguments from the parties concerning the appropriate classification, if any, within the CSC system. I :. , 5 2. If the CSC classification system is m incorporated into the NPC collective agreement, are the grievers properly classified within the NPC classification system? If they are not properly classified, then we will entertain arguments from the parties concerning the appropriate classification, if any, within the NPC system. 3. And, whichever system is applicable, if the grievors are not properly classified, and there is no suitable classification within the system, then we will issue an order that a suitable classification be established. Done at London, Ontario, this 7th day of February, 1992. A. Stapleton, Metiber