HomeMy WebLinkAbout1983-0548.Crockford et al.85-12-03IN THE MATTER GF AN ARBITRATION-
_' ', .
Under . .I ‘.. :
THE CROWN EMPLDYEES- COLLECTIVE BAiiAININi ACT I ? ^ ,~.. ! ( :.' . ., -, ' ~.
Before
THE GRIEVANCE SETTLEMENT.BOARD 'I' ' '.
/.. .~' ,.,
I’,: Between: : _. ,; .,.; OPSEU (P.z,A~.,b-ockford I ..:,
& S. McDiw@ll,
; ;~ ,~~_
_ 2 .~ ,., . j : ; .- : S., Gi,ul iano,?.,et.al.)<,
(R. Fergu"son, et al); '.
'_ 1. t,;il.v- . _r . .(C. Cooke~,.e,t a))., @.* Hal'asjrriiS et.bl) . :: ~j
., 1. , - . :. : ,: _ .,
. .,... Grievprs ~~ :: .
.,_' :~ _...: ..: I~.: ._..._ ; and:- :-"5,:: ' . .,. ,..
..! - .:I._ The Crown in Rightof'Ontario -. _ (Ministry of Community &-Social Servicesy " '.I "~'
_ :. :..* ...I i . . . . -- .Employer .,-_ :....,
;. Before:’ .,--.: E;L-- .R;.?J,: Roberts~ Vice..Chp,irman I ~_ I '.,.~ ~. ; .~
EL McVey Member
L..D. Foreman. :-.: Member.,- :.- 1 .~ ., ,; ,-
-- _ ',I...:' .:
Ontario Public Service Employees &ion,,.
For the Employer: R. Itenson
Senior Staff Relations .Officer :. : :,.,
Staff Relations Branch r'. .. 1-
Civil Service Commission
'Hearing:. ." Febfua;y:qa;‘1ga5 J -. : .'
..~ . April 15, & 16, 1985
Au@,st 29, 1985 : .~ ' .,..I
employof the Ministry. In August, 1983, all employees who
,,: had been 0. 6 D. Workers on or after October 8, 1980, which
.'.', was the effective date of the decisions relating to Syl ,. .::
Aops, filed grievances claiming reclassification retroactive
'. : to that date., The parties agreed that those grievances II
emanating from the the London Observation and Detention
Home would be placed before this panel, and representative
I ',~ evidence was called regarding the duties performed by these - :
workers. For purposes of comparison, the Union also called ;;;
evidence from two employees at the Syl Apps Centre who had I
, been reclassified as'a result of the aforementioned proceedings.
For reasons which follow, a limited number..of these grievances are
.
allowed in part.
..‘. ,;,., :.
.: . .
.,~.,.
2.
DECISION
This case arises out of an apparent dispute between
the parties regarding whether two prior proceedings before
this Board, which resulted in the reclassification of all
Observation and Detention Home (0. h D.) Workers at the
Syl Apps Centre, ought to be applied on an across-the-board
basis similarly to reclassify all 0. & D. Workers in the
I 2 FACTUAL BACKGROUND:
There are three classifications of Observation
and Detention Home Worker at. the London facility: 0. &
D. 1, 0. & D. 2, and 0. 6 D. 3. For purposes of this award,
it will be convenient to deal with these classifications
separately in the order in which the evidence relating thereto
Kas presented by the-Union. This order was as follows:
3.
From the outset, it was apparent that the case,
for the Union.was based upon~lusage" i.e., a comparison :, ~.
of the.dutie.s o,f fhe~.employees at the London facility with, ._
.those ~of the now-reclas,sified employees in the Observption : . . _ :. ;. _,
~: a,+ Detention H;ome.at the.,Syl Apps Centre. L From this latter __~ ;: -, i.
facility,~ the Union called Mr. J.,McLellan, who,had been .: _ . r c
reclass,ified from t-he:, c,lassificqtipn of 0. & D:,,2- to, the ,.: ,. :' ~1
classificati.on 0f.S.D.J. 2. ,. , .: .~ 'I -. _ Mr.&MLellan was not a newcomer j _, _, 1:::: '.
.-< t,o, .the dispute .at..hand.... He.ind$a,t[ed that he h-ad:,Rgiven , . 1 . -j.,
testimony in the previous.proc.eed$ni:_g leading- to?,his re.classifi- .._ ."..I.:
cation as an.‘: S.O.J.. 2.
a. _ '..I ." I, .Based primarily upon:.this.,testimony,t& .previous Board
'"reached:~'the. 'following .finding .of fact:: .- - : i% ; . . . ( t
.;.: I 7 -' :T -' CT ,-; . . , j., ; ;;; -,~ ..__. . :/ 'I;,~! .+,: .: . y;,,,
..,x-," _~. At the -hearing, the Union.~introd,uc.ed,considerable
evidence tending to show a substantial overlap *<~ -.,.. 'inthe dutres and:responsibili.ties,~of~ the, 0.: & D.
2's and the S.O.J. 2's at the Syl Apps Centre. In - fact thisL~evidence tended to $ndica.te.to,the that counsel for th-e Union was correct in her Board
f. -:. : .), assertionithat .there seemed to be no specific and
essential duties that -differentiates the 'tiork of the
,'. .,,two. separate clapsi.fications in this 1,ocation. In
the a~reas of documentation, prograriiming,'~type of
,,inter-action with the juvenilesr;,type of .juvenile
supervised, reporting reldtionship;. security, staff-
ing and organizational structure, .thereseemed
to be little, if any, real dif,ference between
the work being performed by the S.O.J. 2's and
0. & D. 2's . . . Re Brecht and Ministry of
f ‘.
. . . . .
.,. !
4.
Community and Social Services (19621, G.S.B.
#171/81, at p. 6 (Roberts).
Referring to this language in a subsequent award in the
same proceeding, dated May 9, 1983; the Board concluded,
"There is no doubt that we already have made a finding
of fact that the grievors herein are performing essentially
_. the same duties at the‘Sy1 Apps Centie as employees in
the higher, more senior classification of S.0.J: 2. Welying
the laws we understand it to the merits of case, then,
we conclude that the grievors are entitled to the latter
classification." Id.'at p...6;:le .:: -
Once again, Mr. McLellan gave detailed testimony
regarding all of the aspects of his duties.which were in
evidence in the pribr proceeding. E&indicated that the
Observation and Detention Home at the Syl Apps Centre is
designed to house 'juveniles who have either., been charged -.
by the police and are going through the court process.
As of August,-l983', the ages of the juveniles ranged from
_: _
'11 to .16"years, and the duration of stay ranged from 4
to'6 weeks on the average. Depending upon the process '.
inthe courts, he testified; some .juveniles .have stayed
in the facility for up to 2 years.
5.
.I . - After giving this brief background as to the nature : .: -
of the facility, Mr. McLellan went on to testify in detail ; ;
regarding his duties and responsibilities in the Observation _ . . ;- ,':‘ -. .,
and Detention Home at the Syl Apps Centre. For purposes
of this arbitration it is not necessary to go into.these
details to any great extent. It suffices .to~ say that,
as before, Mr. McLellan testified as to his daily routine, .,' .,.
admission procedures, behavior control programming, reporting .: ._ '..."
relationship, documentation, outside contact&, ca,se~ conferences, . ._e. . ~. ,, _ .' :
and the like. .t> 1 '2 '. L I:-.
>_ _, -, 'i-r, __ by,.'. _ .‘,. . .;+-: -..:
Mr. D. Kerr wasp called to testify regarding the : .- ,~,. ., I *I:, i : duties and responsibilities of 0. & D.. 2's at. the London L !. : . ; ,'. ' . . __' . ,_ ,_ ._
facility. ( . As described, these duties were substantially -: ';.~'-, .'~ ^.
similar to those related by Mr. McLellan. He testified .:. I. I., .' . r / . . ~,
that'the facility housed children between the'ages of 11 _, . '.' -_., >' ,. and 16~ and that the average length of'stay was from 2,to ! '. :, _' ,: ,_:':~ 1,
4 weeks. Physically, then facility Gas similar .to thg Ob'servation : ., : ~ :~
and Detention Home in the Syl Apps Centre. The routine _ :.1. :.' . .
of the staff also was substantially the same. This included ._ i ,~. 2
the admission procedures for new residents: assignment
of prime workers:. supervision of the residents both in
their living quarters and at school: and the use of a merit
>ystem, for purposes of behavior modification and control. :.rl. ‘::'
Further, subs~tantial similarity existed in the areas of
Indeed, the L day-to-day programming and record keeping. ,,
nnlv AY-OA where snmp slioht 'difference micht have existed,
6.
area of case conferences and contacts with outside agencies.
While the staff at the London Observation and Detention
Home engaged in these functions, it seemed from the testimony
that it was not as frequent as at Syl Apps.
0. & D. 1:
The evidence relating to this classification was
>
relatively brief. Ms. J. Mahon, an 0. 6 D. 2 at the London
facility, was called to testify that the job she did when
she was an 0. & D. 1 was the same as that of an 0. & D.
2. She stated that the position of 0. h D. 1 was termed
as an underfill position, in which the new employee was
. . . . .
,;
required to spend a minimum of 2,060 hours before becoming
an 0. 6 D. 2. On cross-examination, Ms. Mahon agreed with
counsel for the Employer that when she became an 0. h D.
1, she did not have any prior experience in handling juveniles,
and that she was given an orientation program when she
.,
first started. Thereafter, she stated, she was on her
own under the supervision of senior staff. She agreed
with counsel that this could be termed on-the-job training.
0. & D. 3:
i
The evidence which was submitted by'the Union
regarding the substantial equivalence between the classisficatioris
of 0. h D. 3 and S.Q.J. 3 was somewhat out of the ordinary.
I
(~
7.
-:
The"reason for this was-that by.the-time the grievances
at hand were filed, the position:of S.O.J. 3 had been abolished.
Ms. D. ~Davis-MacLean, who was called totestify by the
Union, stated that early in 1982, the..position of S.O.J.
3 was "broadbanded"'; i.e,., all were made management at
the 0.M: 14 level. Mr. D. Abramowitz, who testified on
&half-of the Employer; stated that as-'of August, 1983, _, i. '. in. '~the classification of S.0.:J. 3 did not“exist. -He testifed
that as a result of a review which was undertaken in 1979,
'an Order in C.ounsel was issued .at-the'-requestP~of the'civil
'Service ?&mission deleting the classifications, of 0. '8,
.,.: D. 3 and"S.0.J; '3‘fromtiie classification-system. The
positio&; were removed from theibargaining unit because
they were~deemed to be' in the. spere=df ina.nag*em'ent.~
:z '< _,. ~. I. '% ,: _
Ms. Davis-MacLean, who was the original grievor
!,. ., 'L from"the'Syl'Apps Centre for;the O.',& D. 3.@osition, was
not, however, made m'anagement. -The O.M. 1.4;'j'ob which replaced
.~ _. . her original 6: & D. 3 job was not bffered to her, she
.
testified', b‘ecause they had'too many-incumbents. Instead,
. . Ms.Davis-MaCLean Was giitena "promo'tion". from O.'& D.' 3
to s.o.3: 2. At that time,'even an S.0.J;'2 made-more
money than"and 0.' & D. '3;. '. - . . i
: : ,_',r ,.,, .I. 0
Because in thins Board's earlier award 'relating
C~. " to Ms.‘ Davis-MacLean's grievance, this Board had made a
8.
she performed as an 0. 6 D. 3 were substantially the same
as the duties and responsibilities of a S.O.J. 3 at the
Syl Apps Centre, Ms. Davis-MacLean was called upon to describe
what those duties were. She stated that from October,1980
to March, 1982, she was the Supervisor as an 0. & D. 3
of 9 full-time staff. This involved overseeing the running
1, .:
of the 0. & D. Unit. The staff who reported to her possessed
the classifications of 0. & D. 1 6 2. In the performance
of her duties, Ms. Davis-MacLean developed a loosely-based
behavior modification,and privilege system and conducted
staff meetings,weekly to review the behavior of residents.
She assigned staff for court duty and assigned prime workers
to any new admissions.. She testified that she also reviewed
all prime worker reports which were destined to be used
in the judicial system and-signed them. Further, she kept
the statistics and scheduled the staff.
Ms. L. Vosding testified that at the time of
the grievance in August, 1983, she was an O.,h D. 3 at
the London fa,cility. Her testimony as to her duties and
responsibilities substantially coincided with that of Ms.
Davis-MacLean. She testified that she was responsible
for supervising the 0. &.D. 1 6 2's at this facility.
Like MS; Davis-MacLean, she-scheduled the staff, assigned
prime workers, and conducted staff meeting -- although,
apparently, not as frequently as Ms. Davis-MacLean. While
she did not design the behavior modification program that
IV=- ;n nlzra in +hP l.~ndnn farilitv. she testified, she
CT ‘- 9.
,. - . I, ,, . .
.: __.
was involved in' modifying and' redesign'ing. 'it.‘ -'She also
performed substantially the same type 'of'a~dministrat&e
:
duties ask. Davis-MacLean. -" .., ', :_ ::' : L
., ,.
1.. Mr. D. McLeil&, who', also.'tias an0. a'-,D. 3 at
the London facility at the tiine..of'the grievance,'kubstantiated
Ms. Vosding's testimony'regarbing*.the supervisory~ and administra-
tive responsibilities,-of an-O. Q Di.3. He also,indicated
I., x ,I >.~ .)<~. d that he was inktrumental in developing the behavior modification
+~,'~':I~, program that was in u&e inLondon;. -He'said that, .based
upon .I I.._ some prog.rams &ith,were-in'place in other facilities,
there was developed a ~i-~&m'to.suit~the~ London,physical,
.v plant and the needs'of-itk residents: .The program was
revised over tkyears in response to changes:,in.rthe plant
., an-d the numbers of children. s:.-
/. !.I~ ..~. -. .,
,I..'- _. .i <, , -,
i.
~,.a, _
II. APPLICABLE LEGAL PRINCIPLES:
.“. -I i The legal principks' whichCare applicable to'class
A-", " ..' . . tib‘n cases 'based"upon so-cal‘led“"clas's usage" :.are well
ifica-
estdblished', and'need'no't- b’e 're-stated Btlength 'inthis
: ‘i award. It suffices 'to say that:a grievor who,demonstrates that
he or she 'is doing substanti'a'lly the ~same work as an' employee
in a 'higher classification'-is' enti~tled &sucEeed upon
,i- -,; ~~ " '.i~,G... I a claim.fdr that 6lasSification: Xt the hearing, counsel
- .< -
for the Minktry submitted that the standard-of review
\. j
?...-I.* en ha ctr;r+ni~
in 0~. that the oriev&r:ouoht to be
I ,“..
10.
put to the burden of showing that his or her job was identical
to that of another employee in a higher classification.
This position, however, does not seem to coincide with
the prior jurisprudence of the Board. In the prior award
of this Chairman dealing with the Brecht case, supra, it
was concluded that the grievors should succeed on a showing
that they were "performing essentially the same duties"
as those in the more senior classification of S.O.J. 2.
Id. at p. 6. In Re Aikins and :4inistry of Health (1983), -
G.S.B. #603/81 (Draper), the Board stated, "whatever the
term used by the Board in earlier classification cases,
'substantially parallel', 'substantially similar', 'virtually
identical' or 'virtually the same', what is to be determined
is whether or not.the work being performed by a grievor
is the same in its distinctive and essential elements as
that being performed by employees in the classification " ,.
sought." Id. at p. 7. (Emphasis supplied). Clearly, this test
\c. can be met without showing that the jobs in question are identical.
.Of course, it seems self-evident from the nature
of Classification cases:, that the power,of the Board to
fashion a remedy must.be limited to awarding a classification
";I .:: which was in existence at a point in time legitimately
covered by the grievance. Usually, this point in time
will be the date of filing of the grievance: however, in
cases where retroactivity is awarded, it would be possible
to award a classification which did not exist at the time i_
of the grievance but did exist at some point in the period
11.
of retroactivity; 3.. : 1 J
- I -1.. : I.
Only in'rare cases will'this,'Board award retroactivity
beyond the commencement of the 'time period for filing'the
grievance leading to arbitration. This Board applies the
usual arbitral'rule that "barring the existence of &rcumstances
.,.. whichwould make itinequitable ~for the Ministry to rely
upon it, retroactivity will be'limited'to the 'period of
time: .-~ .' within'which'.it.was permissible for the g&&or to
I
file his grievance. ..I;: I'- 'In the case of this.Colle&ive.Agreement,
that period is 20 days prior to the day upon whi‘ch the
grievance actually was filed." Re Smith and Ministry of .
: t . r. i
Cbmm~iity & Social Services?l985), G.S;B.'k237/81, at
'. _ (' p. 6 (M&rtSj. ; ':~i'.Y. _ ' '_
;,
1
III.; APPLICATION OF THE LAW TO THE FACTS OF. THIS CASE ,I ~. .-. ~, :: I' ~~ ,-
0. & D. 2: ; .': .%.I' _ _;. .',
Based upon the evidence which was adduced at,the
hearing, there can be little doubt that the work being
performed by employees in the classification of 0. & D. ..:
2 at the London facility is the same in its distinctive . . ,.:. ,.~I -..
.and‘essential elements as that being performed by,an S.O.J.
:. 4 , 2 in the'Sy1 Apps Centre: -With this~ conclusion, ' counsel ~.. .L'>_.,
for'the Employe'r did not quarrel; he submit'ted,'however,
that the evidenc'e of Mr. ,I J.'McLellan regarding 'his duties
as anS.0.J. 2 at the Syl Apps Centre ought to be disregarded
by this Board because it was lacking~~in credibility-~ We
12.
..I
._ :,.,,.
do not find in the record, however, any basis for reaching
such a conclusion. Most of the questions which counsel
posed in an attempt to demonstrate Mr. McLellan's lack
of credibility were based upon discrepancies between his
testimony in this hearing and the Brecht case. This Board
was not privy to what was said at the hearing in Brecht
and cannot accept as evidence thereof the allegations of
counsel. Moreover, there did not seem to be any glaring
inconsistency between Mr. McLellan's testimony and what
the Board in the Brecht case described in its award as
his evidence.
Accordingly, we are led to the conclusion that
the Union successfully demonstrated the requisite degree
of equivalence between the two classifications at hand.
It therefore shall be awarded that the employees in the
classification of 0. 6.D. Worker 2 at the London facility
are entitled to be reclassified into the classification
of S.0.J; 2.
0. 6 D. 1: ' I
It was submitted by counsel for the Employer,
that the grievances of the 0. 6 D. l's at the London facility
must fail because the Union failed to call an S.O.J. 1
from the Syl Apps Centre to testify as to the essential equivalence i I
i (~, ‘.
i’
j,.’
.‘ yp,:-..y .’ , ._ . ^ ,’ ,:.. .’ .
between the duties and responsibilities of the two classifi-
:.r,:; * r.i .,..(., .~, . cations. It will be recalled.that the‘ evidence of the , ..( _.~,
Union comprised the'testimony~'of MS'.' ' '.- . J. Mahonthat the
O.&.D. 1 position is treated'as an'underf:li position in
I ‘i I. ;,<;---. i,
'which new recruits must s&d a minim~umdf'?,6~b hours
before-becoming b.~.f,.~'2H."""~here'iras 'no-evidence as-to
whether the same was true for the classifidation of S.O.J.
.
:.
I~~:-4~ponCdue considerat$on ,of::~his.:sub?,iss,i,?pn,. the
Board rkluctantly.concludes:~fhat~.i$ must-be accepted..
: 'It was-incumbentupon the,Union, f?,subrni~-e~jdence. from
whi&~the:'Board:might.l,egif&mately.drawlan inference ofessential
kquivalence between, these-two pqsition,s~..,.i.,,Th.~ Union did
not. ArYd. whi&e-.the.Board~~,st,rpngly.l.sus?e,cts~ that this. equivalence 1.. _
-- ~. exists:,..:such suspicions:cpnnot substitute .for matters not . . . . ,._
hroven. L Ac~cordingiy, these,. ,grievances mu,s$,f.ail. fpr yant
of: cogent- evidence... i -i .:: ,:. . . ,, .~ .-> .; ; :. L"
:' ;J - ci .i : :: I., ' _ r: - 2 -1 I :. i ,_ .- ; ). -, _ .; . -
7.. -1 a.{-&: ,,/ 3: .;: ;, : .,r.. -' -. *.
c. -. - I _ ,~ , 2,~ c .- .,_, : * 7 ,,.,_, < , .L' _~)' .,
: I 1 _ : 1 L@pal,atable.as,-it may seem, these grievances likewise ,I I - -CC'.. .I,' .. ;
.mus.t fail. :It wt.5 .,undisputed, :in~ the,,evf;ence!-that at the , _- . .' -.
,fime tQy= ,gri:ev!a"ce;,wereoff~$.ed~., I .,,'. i ;,y- ; ,,Au;qy:~ I_ 1983, the
,c,l,aimed;,cl+ssificatiqn,qf ,S.O.J. 3 did not:exist. There I I' .',!,;-, i
<were. np-bargai?i,ng unif emplpyees with this higher classificatioq .~ $;.'^!~'
.who were:doing.the same-work as ,the grievors. Accordingly,
- .
14.
in fact to support them.
It may be that some of the grievances claimed
retroactivity to a date upon which the S.O.J. 3 classifi-
cation existed, and if this claim for retroactivity had
been sustained, it seems logical that this Board would
have jurisdiction to award the requested classification
as of that time. Here, however, the claimed retroactivity .*-
must be denied.
As previously indicated, the law is that
barring the existence of circumstances which would make
it inequitable for the Ministry to rely upon.the usual
rule regarding retroactivity, retroactivity will be limited
to the period of time within which it was permissible to
file the grievance. The Union: submitted that the filing
of the grievances was delayed until August, 1983, because
the grievors had t,o await the outcome of the court case in .
.:'.:,‘~
i.: Brkcht w; to see-'if 'their grievances could succeed.
But this does not appear to the Board to have been so.
The grievances could have been filed at any time before
the outcome of the court case was knownand held in abeyance _-
by the parties until that time. So far as the record disclosed,
there was nothing-to prevent'this. Certainly there was
no evidence to suggest that the Ministry somehow induced
the grievors to await the outcome in the courts. Accordingly,
the usual rule regarding retroactivity must be applied.
This limitsretroactivity to the period of time within
which it was permissible for the grievances to be filed.
’
15.
.: .,. J .,.: :,
In every case, this occurred $fter'the elimination of'the
S.O.J. 3 classification.
- +::.
.CONCLUSION ,
In sum; the grievances of the 0. & D. 2's are
allowed, with retroactivity limited to the period of time
withi.n,which it was permissible for each grievor to file ~.
his or her grievance.~. Interest also is awarded upon all
retroactive payments according to the formulation approved
\ and applied in'Re Jones and Ministry of Correctional Services
(lS8'4i'i.G.S.B'; .#537/82 (Jolliffe). The grievances of the / '. --. ..~. - ._ _ _ ,_
0. 6 D l's and 0. & D. 3's are denied. .,. I 7 /
Before leaving'the matter, the Board wishes to
express its regret and deep sense of frustration at having
to remit the matter to the parties in this posture. At
this stage, it appears to the Board that technical flaws
in the evidence and supervening events have conspired to
prevent our reaching a comprehensive or symetrical ,award
regarding the status of persons classified at -different
steps in the Observation and Detention Home Worker Classisfication.
We wish to take this opportunity to encourage the parties
to reach through negotiation .a comprehensive and equitable
solution to this problem. We will retain jurisdiction
pending implementation of the terms of this award. '
. . 16.
DATED at London, Ontario, this 3rd day of December,
1985.
Vice Chairman
.
.
I
"E. McVey" Partial dissent attached.
S. McVey, Member
L. D. Foreman, Member
.
.
The Board has been asked to r;ie on '7 .dispute between'theparties
r '-c
regarding classi'ficatio&in the London .DetentibnCentie and the
S>l Apps &ntre. The grievances '&re'estdbl~ish‘ed as aresult of
..,,.
the decisions of the Bbard'wi'th'regard to d.S;B'. 1'7?/81-'and 170/81.
,, ii
Both facilities - London and Syl Apps are basical-ly~the'rame type,
serve the same type of people, do the same work, have the same routine
1,.
and the jobs -are virtual.ly"the's'ame in ~l,l-'~in~sta~~~e~'in both
'I
,n~i I - .& . .,<
institut/on< and mdre'than li'k‘ely aT\ Ju;‘enil‘e'-Detentidn'Centres
:i . . .
in the Province. . ,:,, i ,.; _ .. ,..
'-" 'L, .'_ : .:' r ..' /,::: ?,"‘, :,
The union claimsthat sin'c&h'e 't&pr#r proceedi'ngs'before the
Board resulted-in the .~ecjafssiiicati~n.'-df aiT O.&'D *orkers at
,. . (..~I: \..'. the Syl Apps it should follow that all 0 & D workers'should be
reclasslfjeb.
,, _ ,, I '&f~e w; th the';& ti;;~ if ..th>i;&;* '..I 'Y
*;, /~, <'l.. 'I . . '(, \r . . . 5r' : “ ,]I,~, f >.a I
of the classification system as it exists. -"
The Ministry is doing just that by proceeding to arbitration
I?!,, I<,.
with cases hoping to get the Board 'to'ibake a decision favourable
.
-2-
:'
c>-
0 & D 111
The award of the Board suggests that the classification of S.0.J
‘111 did not exist at the time the grievance was filed and that the
Ministry submitted evidence to that point. It seems to me on
reading and rereading the evidence there is x supportive doc-
umentation to uphold the Ministries position that the classification
did not exist on August 1983 when the grievances were filed. While
Mr. David Abramowitz stated the classification did not exist neither
he nor the Ministry council. produced any documention to prove it.
The Order in Council was not produced, no dates were given -
only guesses. .,
On cross Mr. Abramowitz could not recall the date of the Order in _---
.Council, did not_ know,the'official date of.the change - if there .
was one - he stated it was put into review in 1978 (?) was not sure
of it ( the classification S.O.J. 111) was in effect in 1182 or 1983.
He further stated that the Job Specs (Ex 3) were part of the review :
but did not know when the new specs were in effect.
Since Mr. Abramowitz' evidence is very important to the Ministries
case, one would think he would be more precise and one would think
council would have produced proof (new job specs etc.) but he chose ,-
not to do so.
On page 10 of the award ' of course, it seems self-evident from
the.nature of classification cases, that the power of the Board
.
3,. . .
,:. ,
’ (1 i,
-3-
to fashion a remedy must be limited to awarding a classification
which was in existence at a point in time legitimately covered by
the grievance". I agree and as shown in the abo~ve documentry evidence
that the classification was not in existence was not produced and
therefore the Board can and shoulb "fashion"the remedy by awarding
the grievance in the unions favour.
It follows then that since there is no clear evidence to uphold
.the Ministry's position'the union%case must be upheld. 1,would
therefore award in favour of the union with regard to 0 & D 3,
allow the grievance and retain jurisdiction pending iinplimentation ~,
with regard to retro-activity.
O&D1
It is suggested intheaward that evidence was notprovided by the
union to show that there was equivalence with the Sly Apps Centre.
I agree that because there was no evidence provided these grievances
must fai.1 for want of cogent evidence.
0 SD11
I agree with the award in regards ,to these grievances.
C,ne item bearsrepeating. In the case of the 0 & D 1 the grievances
Must Fail for want of cogent evidence, so with the 0 i D 111 grievances .
gust Succeed because of a lack of evidence from the Ministry regarding
the existence of the classification in August 1983 all of which is
respectively submitted.
.A