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HomeMy WebLinkAbout1988-0842.Sturch et al.90-05-08i~ ONTARIO EMPLOYES DE LA COURONNE .,~' CROWN EMPL 0 YEES DE L'ON TA RIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST. TORONTO, ONTARIO M5G 1Z8- SUITE 2'IO0 TELE~HONE/T~L~'PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8 - BUREALt 2100 4416) 598-0688 842/88, 693/88, 676/88, 454/88, 2588/87, 2589/87 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Sturch et al) Grievor - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE: M.B. Keller Vice-Chairperson J. McManus Member I. Cowan Member FOR THE S. Grant GRIEVOR: Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE J. Mideo EMPLOYER: Manager, Staff Relations Ministry of the Attorney General HEARING: February 14, 1990 DECISION The grievors claim that their job is improperly classified and seek reclassification to Court Reporter II. The remedy is sought pursuant to two earlier Board decisions dealing with the same grievors, one dated January 7, 1988 (Sturch I) and the second some months later, (Sturch II). sturch I dealt with the issue of classification and Sturch II with the issue of where the successful grievors should be put on the pay grid. For our purposes, the more relevant of the two decisions is Sturch I. In that decision, a panel of the Board chaired by Ms. D.J. Forbes-Roberts found that there was no appreciable difference between Court Reporters I and II and awarded the grievors the classification of Court Reporter II. As there was agreement by the parties that they were prepared to rely on the findings of fact in Sturch I and as the matter in front of this panel flows from that decision, it is useful to reproduce the following extract from the Sturch I decision. According to the grievors they spent eighty (80) to eighty-five (85) % of their time performing "reporting" versu~ "clerical" functions. Under cross-examination the employer's witness agreed that foremost in their mind when assessing the job Court Reporter I (Atypical) as Opposed to Court Report II were three (3) factors, first, the method of reporting, second the clerical functions associated with the I position, and third the Job Specs. We have no doubt that the job audit was conducted in good faith. And indeed it is managements right and obligation to classify positions. However management may become trapped by tradition. We turn our minds to the two considerations voiced by the employer's witness. First, we consider the methods of reporting used by the Court Reporters I and II. One uses open mike, the other uses stenomask. The object of both methods is to produce a written record of a legal proceeding. Both methods succeed in achieving this object. We find the distinction between them to be without a difference. Second, we consider the "clerical" aspect of the Court Reporter I job. The employer describes approximately fifty (50) % of the job functions as clerical. The evidence was that at best ten (10) to fifteen (15) % were perhaps of a clerical nature. We do not find the minimal clerical functions performed, if indeed they are clerical, to be determinative of the matter. Finally, we turn to the Job Specs.. They are quite simply put outdated. In addition, were the two documents untitled it would be virtually impossible to tell which was Court Reporter I and which was Court Reporter II. There is, in short, so little between the two so as to make it virtually impossible to' distinguish them. In light of the fact that we find a distinction without a difference between the two (2) gradings, we find that the grievances succeed. The grievors are awarded the position of Court Reporter II effective twenty (20) days prior to their respective grievances, with the attendant remuneration. The matter has arisen again because new job standards were promulgated by the employer. In fact, they were promulgated while Sturch I was still before the Board. They differ considerably from the old ones. It was acknowledged that the essential feature in the standards that distinguishes a Court Reporter I from a Court Reporter II is that the former monitor judicial proceedings electronically while the latter record judicial proceedings arising shorthand, stenomask or stenograph. The argument of the employer, simply put, is that the Board is without jurisdiction in this matter. We are told we may determine whether the employer is conforming to the classification system as it has been established or agreed to and nothing more. Once the employer has determined class standards it is beyond the purview of this Board. In support of this proposition the Board is referred to Re Rounding et al and ~inistry of Community and Social Services (1976), G.S.Bo #18/75 (Beatty), Re Thompson and. Ministrv of Natural Resources (1976), G.S.B. #7/76 (Beatty), Re Anderson et al and Ministry of Natural Resources (1989), G.$.B. #497/85 (Roberts), and Re Blade et al and Amalgamated Transit Union, (1988), G.S.B. #1276/87 (Shime). Counsel for the grievors takes the position that Sturch I determined that there was no essential difference between Court Reporter I and II, that they should all be at level II and that this panel is bound by that decision, particularly as the job duties have not changed since. We have carefully reviewed the earlier decisions of the Board referred to us by counsel for the employer but we do not believe they are on point in the instant matter. Sturch I made a finding of fact that there is no substantial difference between the two grades and awarded both the position of Court Reporter II. Given the agreement of the parties to rely on the findings of fact in Sturch I, as well as other minor stipulations during the course of the hearing, we too are obliged to find no substantial difference and as such we are bound by the Sturch I decision and the grievance succeeds. The Board will remain seized in the event that the parties have difficulty with the implementation of this decision. - 5 - DATED at Nepean, this 8th of May, 1990. M.B. Keller, Vice-Chairperson J.D. McManu$, Member I.J. Cowan, Member