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HomeMy WebLinkAbout1991-2134.Catellier & Girardin et al.92-12-01 CROwN. EMPLOYEES DE £'ONrARtO * GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~80 DUNDAS STREET wEsT, SUITE 2~00, TORONTO, ONTARIO, MSG $Z8 TELEPHONEITELEOHoNE: (.~ 161 326- t388 1~0, RUE OUNOAS OUEST, BUREAU 2100. TORONTO {ONTAfl~O~. MSG 2134/91, 2178/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYERS COLLECTIVE B~t~GAINING ACT Before ''THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Catellier/Girardin et al) Grievor - and The Crown in Right of Ontario (Ministry of Health) Employer BEFOR~: A. Barrett Vice-Chairperson I. Thomson Member D. Clark Member ~OR THE C. Dassios · UNION Counsel Gowling, Strathy & Henderson Barristers & solicitors FOR THE J. Brooks EMPLOYE~ Counsel Genest, Murray, DesBrisay, Lamek Barristers & Solicitors H~RING September 16, 1992 DECISION The Grievors, Catellier, Chellew, Healey, hloyd~and Mallory, are all Storekeepers classified as Clerk 3 Supply, employed at the Brockville Psychiatric Hospital. They claim they are improperly classified and, by way of settlement, desire "to be properly classified by the employer with all monies and credits due retroactive to January 1, 1991". The employer raised two preliminary objections prior to the. commencement of the hearing of evidence which we will deal with in this interim decision. In order to understand the objections, it is necessary to set out some undisputed background facts.. 1. Each of the ~rievors is a lonG-service employee with between 20 and 31 years of seniority. 2. In May, 1989, all of the ~rievors were classified as Clerk 2 Supply, and four of the five (Mr. Chellew excepted) Grieved their classification, requesting as their remedy that they be reclassified as Clerk 3 Supply. 3. Shortly 'after the Grievances were filed, manaoement ~sponded by a memo dated May 31, 1989, to each of the four ~rievors, saying that it would recommend reclassification for all of them based upon new job specifications which were being drafted. 3 First of all, the employer objects that the union is not entitled to Go beyond the date of the Grievances (May, 1991) to adduce evidence as to the status of the Rideau clerks in support of a usage argument. At the time the grievances were filed, the Rideau clerks were classified the same as these clerks and no usage argument existed. Facts and circumstances arising subsequent to the Grievances cannot be adduced in evidence to support a finding of improper classification, which is always made as at the date of the filin~ of the Grievances. Employer counsel cites Cooper, GSB ~551/88 (Gorsky), a usage case where, subsequent to the filing of a grievance by employee A wishing to compare herself with employee B, the employer reclassified employee B downward. The Board refused to take into account the subsequent downward reclassification in finding that the grievor was Performing substantially the same duties as employee B at the time of the grievance and was therefore entitled to the classification that employee B held at that time. Employer counsel says the Coo~er case is a mirror copy of our case. Reclassification upward after the date of the grievances is not admissible evidence either. Union counsel acknowledges the settled jurisprudence of this Board dictating that post-grievance evidence is Generally speaking not admissible, but he says he does n~% really want to violate that rule: he simply wants to lead evidence to show that the job duties of the Gr/evors as of the date of their grievances.and the job duties of the comparator group at Rideau as'of the same date were substantially the same. He then wants us to find that these ~rievors should be elevated to "the same classification as the Rideau clerks". Union counsel say~ it does not serve any practical purpose to make everyone similarly situated wait while the first of a series of classification Grievances is settled or determined before filing "me too" Grievances. We do not agree with the union position. No usage argument existed as at the date of these Grievances. If the'Rideau Grievors had lost their case st arbitration or withdrawn their Grievances for some reason, these grievors would not wish to have a "me too" decision. Had our arbitrat'ion hearing occurred before the Rideau Grievances were settled, these grievors would'not have been entitled to lead evidence that they were performing substantially the same work as other people classified exactly the same as they were. That evidence would have been redundant and irrelevant. On the basis of Cooper (supra), and Just plain common sense, we will not allow the union to lead usage evidence about the Rideau'clerks' duties at the date of these grievances. The second employer-objection relates to the standards argument which is another aspect of this case. The employer says that four of these five grievors settled earlier grievances requesting a Clerk 3 classification'in September, 1989, essentially agreeing that they were then properly classified as Clerks 3 Supply. To the extent that there has been no change in their duties or employment circumstances since that time, they should not be permitted to resile from their a~reement. Employer counsel relies on Neubert, GSB ~475/89 (Fraser}, for the principle that an emDtoyee should be. estoDpe~ from Grieving his/her classif~cation on Grounds arisin~ from any material facts existin~ prior to the date of settlement of the earlier grievance, which were fn 5 his/her knowledge at the time the settlement was signed. In Neubert the Board found that some facts material to the Grievor's classification were not known to him or the union at the time of his settlement of an earlier classification grievance. It was held that, as classification Grievances are of a continuing nature, the settlement was not a bar to a Grievance based on new facts or facts unknown to the grievo~ at the time of the earlier settlement. Employer counsel in this case asks us to restrict the union standards evidence to demonstrable changes in duties and job circumstances arising since the earlier settlement, for four of the five grievors. (This. argument obviously does not apply to Mr. Chellew who did not grieve his case earlier.} Union counsel relies on Komendat, GSB ~1246/90 (Dissanayake), for the principle that an employee is entitled to file a new ~rievance after a settlement of an earlier classification grievance, even though there has been no change in duties from the settlement to the date of filing the new grievance, where the comparator in the earlier usage grievance was reclassified subsequent to the settlement made by the grievor. The Board found that where there was no estoppel alleged or proven and no abuse of process, the Grievor was entitled to proceed w~th his grievance for the reason that in his earl/er ~rievance he had compared himself with someone whom he assumed was properly classified. Upon discovering later that that person was improperly classified (by order' of this Board), he then had the right to attempt to have his clas~ificati0n rectified too. 6 We agree with the principles and the finding in Komendat. This case is to be distinguished to some extent however. It was the subsequent reclassification of his comparator that Gave rise to Mr. Komendat's new Grievance. In our case, there was no reclassification of a comparator Giving rise to these grievances.'There is now, but there was not in May, 1991. Therefore, with respect to the standards branch of the union argument, the grievors, with the exception of Mr. Chellew, shall be restricted to evidence of facts and circumstances arising between September, 1989, and May, 1991, to demonstrate why the classification which was agreed to have been proper in September, 1989, is no longer proper. Thus, we summarize our preliminary ruling as follows: 1. The union shall not be entitled to lead usage evidence relating to the Rideau clerks as a result of their changed classification subsequent to these grievances. As a corollary to this, the union may not lead evidence of what the Rideau clerks' Job duties were in May, 1991, because their classification then was identical to these grievors', and that evidence is.irrelevant.. The Grievors, with the exception of Mr. Chellew, are bound by their settlement of September, 1989, to the extent that they may not lead evidence to show that they were improperly classified at that time. 7 Only evidence of changed circumstances and changed duties since the settlement will be admissible. The hearing on the merits will continue on January 4, 1993, as agreed. Dated at Toronto this 1st day of ~Ecember, 1992. A. ~arrett, Vice-Chairperson "! D~ssen~" (d~ssent alf£ached) I. Thomson, Membe:- D. Clark, Member DISSENT 2134/91, 2.178/91 OPSEU (Catellier/Girardin et al) and the Crown in Right of Ontario (Ministry of Health) I must disagre~ with the majority in this decision re the Employers preliminary objection. This decision will only cause other grievances to be filed in this matter and necessitate further hearings by the Board. One of the grievors (Chellew) will. be allowed to present evidence in his grievance that is not allowed to the other grievors even though they all do the same job. With the limited financial resources of .the Board this seems unnecessary since we could deal with the issue of the date of re-classification, if necessary, as part of the remedy, if the grievors are successful. The majority of this Board states they agree. With the decision in Komendant with the exception set out on Page 6. While I realize this is an important distinction I do not feel it is of such importance as to override the decision of Blake. I would have dismissed the Employers preliminary objection for the above reason. /I,,/ThOmson, Member